THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


GIFT  OF 

Estate  of 
David  Prescott  Barrows 


MILITARY  LAW 


AND  THE 


PROCEDURE  OF  COURTS-MARTIAL 


BY 


EDGAE   S    DUDLEY,  LL.B.,  LL.D. 

COLONEL,  JUDGE  ADVOCATE,  U.  S.  ARMY 

Professor  of  Law  at  the  United  States  Military  Academy 
West  Point,  New  York 


FIRST   EDITION 
FIRST  THOUSAND 


YORK 

JOHN    WILEY    &    SONS 

LONDON:   CHAPMAN   &   HALL,   LIMITED 

1907 


Copyright,  1907 

BY 
EDGAR  S.  DUDLEY 


ROBERT  DRUMMOND,  PRINTER,  NEW   YORR 


Add  to  Lib/ 

/OTT7T 


PREFACE 


THIS  book  has  been  prepared  to  meet  the  existing  neces- 
sity at  the  United  States  Military  Academy  for  a  text-book 
which  would  give  a  clear  and  thorough  outline  of  the 
science  of  military  law,  including  all  recent  changes  and 
developments,  and  yet  be  contained  within  such  brief 
compass  as  to  be  adapted  for  use  in  the  instruction  of 
Cadets  within  the  limited  period  assigned  to  the  study  of 
the  subject.  The  work  also  aims  to  deal  with  the  general 
procedure  of  courts-martial  and  to  set  forth  that  pro- 
cedure and  existing  military  laws  in  such  a  manner  as  to 
make  a  text  of  practical  use  to  the  service  at  large. 

The  author  wishes  to  acknowledge  the  constant  and 
valuable  assistance  received  from  the  Assistant  Professor 
and  Instructors  in  the  Department  of  Law  at  the  Military 
Academy,  who,  during  the  past  year,  have  given  instruc- 
tion in  the  text  as  tentatively  prepared  and  have  made 
suggestions  and  criticisms  which  have  resulted  in  a  clearer 
and  better  presentation  of  the  subject  matter  and  the 
elimination  of  some  errors. 

These  officers  are:  Captain  J.  K.  Moore,  15th  U.  S. 
Infantry,  Assistant  Professor;  First  Lieutenants  Irvin 
L.  Hunt,  19th  Infantry;  Halsey  E.  Yates,  5th  Infantry; 
Edwin  G.  Davis  and  Edward  Canfield,  Jr.,  Artillery  Corps. 
It  is  desired  to  include  in  this  acknowledgment  the  assist- 
ance in  revision  and  correction  of  the  work  received  from 

iii 

456 


iv  PREFACE 

First  Lieutenant  S.  T.  Ansell,  llth  Infantry,  since   de- 
tailed as  an  Instructor  in  the  Department. 

The  author  is  greatly  indebted  to  General  George  B. 
Davis,  Judge-Advocate-General  United  States  Army,  for 
his  encouragement  and  advice,  and  to  the  text  of  his 
more  extensive  work  on  Military  Law,  from  which  author- 
ity many  quotations  have  been  made;  also,  for  an  ex- 
amination and  review  of  this  work,  to  General  J.  W. 
Clous,  Judge-Advocate-General  United  States  Army,  re- 
tired, whose  long  experience  in  the  service,  and  as  Pro- 
fessor of  Law  at  the  United  States  Military  Academy  from 
1890  to  1895,  gives  especial  value  to  his  criticism  and  sug- 
gestions. 

WEST  POINT,  N.  Y.,  December,  1906. 


CONTENTS 


CHAPTER  I  PAGE 

MILITARY  JURISDICTION.     Military  Law;    Military  Government; 

Martial  Law 1 

CHAPTER  II 

MILITARY  LAW.  Origin  of  Military  Code;  Statutes;  Army  Regu- 
lations; Orders;  Decisions,  etc 5 

CHAPTER  III 
MILITARY  TRIBUNALS.     Jurisdiction;  Functions,  etc 13 

CHAPTER  IV 
GENERAL  COURTS-MARTIAL.      Authority  for;   Who  may  Convene .     18 

CHAPTER  V 
COMPOSITION    OF    GENERAL    COURTS-MARTIAL.     Eligibility    of 

Members 24 

CHAPTER  VI 

JURISDICTION  OF  COURTS-MARTIAL.  GENERAL  COURTS-MARTIAL. 
Territorial  Jurisdiction;  Jurisdiction  over  Persons  and 
Offenses;  Jurisdiction  over  Persons  after  Expiration  of 
Service;  Contempts 28 

CHAPTER  VII 

JURISDICTION.  INFERIOR  COURTS-MARTIAL.  Garrison  Court- 
martial;  Regimental  Court-martial;  the  Summary  Court ...  40 

CHAPTER  VIII 
ARREST  AND  CONFINEMENT.     Arrest  of  Officers;   Status  of  Arrest; 

Arrest  of  Enlisted  Men 50 

v 


Vl  CONTENTS 

CHAPTER  IX 

ARREST  OF  PERSONS  IN  MILITARY  SERVICE  BY  CIVIL  AUTHORITIES. 
Service  of  Process  on  Military  Reservations,  over  which 
Jurisdiction  has  not  been  Ceded;  Where  Jurisdiction  has  been 
Ceded. 57 

CHAPTER  X 

CHARGES  AND  SPECIFICATIONS.     How  Drawn;    Who  may  Prefer; 

Service  of  Charges;   Papers  to  Accompany  Charges 62 

CHAPTER  XI 

ORGANIZATION  OF  COURTS-MARTIAL.  Members;  President;  Quo- 
rum; Uniform 69 

CHAPTER  XII 
THE  JUDGE-ADVOCATE;    COUNSEL  FOR  THE  ACCUSED.     Reporter; 

Interpreter 76 

CHAPTER  XIII 

CHALLENGES;  OATH  OF  MEMBERS  AND  JUDGE-ADVOCATE.  Inde- 
pendence of  the  Court ;  Postponement  of  the  Trial 86 

CHAPTER  XIV 
ARRAIGNMENT;  PLEAS.     Nolle  Prosequi 93 

CHAPTER  XV 

ATTENDANCE    OF    WITNESSES.     Writ    of    Attachment;     Habeas 

Corpus 107 

CHAPTER  XVI 
INTRODUCTION  OF  EVIDENCE;  DEPOSITIONS 116 

CHAPTER  XVII 
DEFENSES.     Elements  Necessary  to  Constitute  Crime 128 

CHAPTER  XVIII 
THE  FINDING.     Finding  of  Lesser  Kindred  Offense 139 

CHAPTER  XIX 
PREVIOUS  CONVICTIONS.    When  Submitted,  etc 144 


CONTENTS  Vii 

CHAPTER  XX  PAGE 

SENTENCE  AND  PUNISHMENT.  Sentence  to  Penitentiary;  to  Mili- 
tary Prison;  Date  Sentence  Takes  Effect;  Sentence  in  Excess 
of  Law 148 

CHAPTER  XXI 
PUNISHMENTS.     Forms  of,  for  Officers;  for  Enlisted  Men 155 

CHAPTER  XXII 
VOTING.     Recommendation  to  Clemency 173 

CHAPTER  XXIII 
THE  RECORD.     Proceedings  how  Recorded;  Revision  Proceedings; 

Disposition  of  Records 177 

CHAPTER  XXIV 

THE  REVIEWING  AUTHORITY.     Action  of;  Execution  of  Sentences.   195 

CHAPTER  XXV 

PARDON  OR  MITIGATION  OF  PUNISHMENT;  REVIEW  OF  PROCEED- 
INGS OF  COURTS-MARTIAL  BY  CIVIL  COURTS 205 

CHAPTER  XXVI 
COURTS   OF  INQUIRY.     How   Constituted;     Mode   of   Procedure; 

Record 212 

CHAPTER  XXVII 
RETIREMENT:     RETIRING    BOARDS.     Composition,    Constitution, 

etc.;  Retirement  on  Examination  for  Promotion 220 

CHAPTER  XXVIII 
BOARDS:  SURVEYS  ON  PROPERTY.     The  Surveying  Officer 237 

CHAPTER  XXIX  \ 
EVIDENCE.     Rules    of    Evidence    Applied    by    Courts-martial; 
Classification,    etc.;     Competency    and    Credibility    of    Wit- 
nesses; Incriminating  Evidence 246 

CHAPTER  XXX 

THE  LAWS  OF  WAR.  Military  Government;  Martial  Law;  the 
Military  Commission.  EMPLOYMENT  OF  TROOPS  IN  THE  EN- 
FORCEMENT OF  THE  LAWS,  RELATIONS  OF  MILITARY  PER- 
SONS TO  CIVIL  AUTHORITY .  296 


Vlll 


CONTENTS 


CHAPTER  XXXI  PAGB 

THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED 324 

APPENDICES 

APPENDIX  A.  ARTICLES  OF  WAR 459 

APPENDIX  B.  ACT  ESTABLISHING  THE  SUMMARY  COURT 480 

APPENDIX  C.  ACT  TO  PREVENT  THE  FAILURE  OF  MILITARY 

JUSTICE 482 

APPENDIX  D.  EXECUTIVE  ORDER  ESTABLISHING  LIMITS  OF 

PUNISHMENT 484 

APPENDIX  E.  GENERAL  FORMS.  FORMS  Nos.  1  TO  26 494 


ABBKEYIATIONS 


A.  H Army  Regulations,  Edition  1904. 

Art Articles  of  War. 

Court-martial  Manual ...  Manual  for  Courts-martial,  Edition  1905. 

Dig.  Op.  J.  A.  G Digest     Opinions    Judge-Advocate-General, 

U.  S.  Army,  Edition  1901. 
R.  S Revised  Statutes  U.  S. 


IX 


NOTE 

By  the  Act  of  Marcli  2,  1907,  the  Military  Secretary's 
Department  having  been  changed  to  the  Adjutant- Gen- 
eral's Department,  the  words  "  Adjutant- General  "  should 
be  substituted  for  the  words  "  Military  Secretary  "  where- 
ever  they  occur  in  this  book. 


MILITARY   LAW 

AND    THE 

PROCEDURE   OF   COURTS-MARTIAL 


CHAPTER  I 

MILITARY  JURISDICTION;   MILITARY  LAW;   MILITARY 
GOVERNMENT;  MARTIAL  LAW 

1.  Jurisdiction. — Jurisdiction,  in  its  most  general  sense, 
is  the  power  to  make,  declare  and  apply  the  law.    The 
jurisdiction  of  a  state  is  its  sovereign  power  to  govern  or 
legislate,  and  to  exercise  its  authority  within  its  territorial 
limits.1 

2.  Military  Jurisdiction  is  the  power  to  make,  declare  and 
apply  the  law  pertaining  to  the  military  forces  of  a  nation 
in  all  its  forms  of  action  and  operation.    It  is  applicable 
not  only  to  persons  in  the  military  service  and  to  those 
conditions  of  their  service  which  impose  upon  them  duties 
with  regard  to  persons  not  ordinarily  subject  to  military 
jurisdiction,  but  it  also  governs  other  persons,  under  cir- 
cumstances which  place  them  within  the  sphere  of  military 
operations,    making    them    subject    thereto, — as    in  the 
field  of  operations  in  time  of  war,  or  -during  the  existence 
of  serious  domestic  disturbances  at  any  time. 

1  U.  S.  v.  Bevans,  3  Wheat.  (16  U.  S.)  386  et  seq .;  R.  I.  v. 
12  Pet.  (37  U.  S.)  733. 


2  MILITARY  LAW 

Military  jurisdiction  includes,  then,  not  only  military 
law  proper,  as  applied  to  persons  in  the  military  service, 
but  also  military  government  and  martial  law,  each  of 
which  has  its  proper  place  in  relation  to  the  other  and  to 
the  government  and  conduct  of  armed  forces  and  of  those 
persons  subject,  for  the  time  being,  to  its  control. 

3.  Military  Law  in  its  strict  sense,  as  used  in  this  text, 
is  that  law  which  governs  all  persons  in,  or  legally  belong- 
ing to,   the  military  establishment  of    the    nation  and 
which  is  in  force  at  all  times,  in  peace  or  in  war,1  and  in 
all  places,  at  home  or  abroad. 

The  general  term  " military  law"  has  often  been  used 
as  synonymous  with  "  martial  law7'  and  also  to  include 
the  "law  of  military  occupation ";  but  this  use  of  the  term 
is  incorrect;  each  of  these  terms  has  its  own  definite  and 
proper  meaning  and  construction  to  be  given  it. 

4.  Military  Government,  or  the  "  government  of  military 
occupation/'  is  the  government  established    by  a  com- 
mander over  occupied  enemy's  territory  and  is  therefore 
within  the  domain  of  international  law  and  the  laws  of 
war.     It  is,  in  fact,  the  will  of  the  Chief  Executive  of  the 
nation  exercised  through  the  commander  of  the  occupy- 
ing military  forces.     It  exists  in  conquered  or  occupied 
territory  where  civil  authority  has  ceased,  and  all  the 
functions  of   government,  legislative,  executive,  and  ju- 
dicial, are  for  the  time  being  united  in  the  powers  of  the 
military  commander,  and  are  exercised  by  him  under  the 
authority,  and  as  the  representative,  of  the  Chief  Execu- 
tive of  his  nation.     The  enemy's  territory  may  be  either 
foreign  conquered  territory,  or  territory  within  the  state 
held  by  rebels  who  are  recognized  as  belligerents. 

5.  Martial   Law  is   that  rule  by   the  military  power 
which,  as  a  result  of  public  exigency  or  military  necessity, 
may  be  exercised  in  time  of  war,  insurrection  or  rebellion, 

1  See  par,  771,  post. 


MARTIAL  LAW  3 

in  parts  of  the  country  retaining  their  allegiance,  over 
persons  and  things  not  ordinarily  subject  to  such  rule; 
and  also,  in  time  of  war,  insurrection  or  rebellion,  it  is 
the  law  applicable  to  persons  in  the  military  service  with 
regard  to  acts  or  obligations  arising  out  of  such  emer- 
gency not  falling  within  the  domain  of  military  law,  nor 
otherwise  regulated  by  law.1  Wheji  exercised  in  domestic 
territory,  it  is  limited  to,  and  proclaimed  only  in,  those 
places  where  civil  authority  has  ceased  to  exist  and  the 
ordinary  civil  processes  and  functions  must  necessarily  be 
replaced  by  the  strong  and  arbitrary  power  of  military  au- 
thority exercised  within  the  limit  of  a  sound  discretion 
and  under  a  sense  of  future  responsibility.2 

Whenever  the  necessity  for  its  existence  ceases  and 
civil  functions  are  resumed,  martial  law  disappears,  the 
military  being  always  subordinate  to  the  civil  in  time  of 
peace  when  civil  powers  are  unrestrained. 

6.  Military  law  has  its  code,  or  statute  law,  and  its  com- 
mon or  unwritten  law  consisting  of  recognized  usages  and 
customs  of  the  service. 

Military  government  has  no  code;  the  governing  power 
is  simply  the  will  of  the  commander  exercised  according 
to,  and  controlled  by,  the  usages,  customs  and  laws  of  war 
as  recognized  by  all  civilized  nations. 

The  military  commander,  while  not  responsible  to  the 
courts  of  the  occupied  territory,  may  be  required  to  an- 
swer for  any  illegal,  arbitrary  or  unjustifiable  acts  by  the 
authorities  of  his  own  country.  But  if  his  acts,  done  in 
his  official  capacity,  have  been  directed  or  authorized  by 
his  government,  or,  even  though  in  excess  of  his  authority, 
are  afterward  ratified  by  it,  they  then  become  the  acts  of 
the  government,  and  he  is  relieved  from  responsibility 
therefor.3 

1  Court-martial  Manual,  p.  5. 

2  See  Mitchell  v.  Harmony,  13  How.  (54  U.  S.)  115. 
8  See  par.  660-667,  post. 


4  MILITARY  LAW 

Martial  law  is  also  the  will  of  the  military  commander, 
but  the  acts  of  such  commander  are  always  subject,  after 
the  exigency  is  over,  to  come  directly  under  the  cognizance 
of  the  civil  authority  of  the  state,  and  he  may  be  held  liable 
in  its  courts  for  any  act  of  injustice  arising  from  arbitrary 
conduct  or  unjustifiable  use  of  his  powers.  His  whole  duty 
is  to  regulate  the  disorder  prevailing  and  to  restore  the 
civil  authority  to  power  just  as  soon  as  practicable,  mean- 
while conducting  the  affairs  of  the  disturbed  region  ac- 
cording to  his  best  judgment  for  the  benefit  of  all  its 
inhabitants  and  their  rights,  and  with  justice  to  all.1 

1  See  par.  668-678,  post. 


CHAPTER  II 
MILITARY    LAW 

7.  "  Military  Law  in  the  United  States  consists  of  the 
Rules  and  Articles  of  War  and  other  statutory  provisions 
for  the  government  of  persons  subject  to  military  control, 
to  which  may  be  added  the  unwritten  or  common  law 
derived  from  the  usages  and  customs  of  military  service." 

ORIGIN   OF  OUR  MILITARY  CODE 

8.  The  Rules  and  Articles  of  War  for  the  government 
of  the  armies  of  the  United  States  were  derived  from 
those  of  the  English  army  which  were  in  force  when  the 
British  troops  were  in  the  colonies  just  prior  to  the  Ameri- 
can Revolution.1 

1  Many  colonists  had  served  with  the  British  troops  in  the  French 
and  Indian  wars;  some  of  them  were  also  engaged  in  the  capture  of 
Havana,  Cuba,  in  1762,  and  they  were,  therefore,  acquainted  with  the 
rules  and  regulations  in  force  for  the  government  of  the  English  army. 

The  laws  governing  that  army  had  been  derived  from  articles  of  war 
prescribed  by  the  sovereign  and  a  long  series  of  enactments,  the  first 
being  enacted  by  Parliament  as  the  ''Mutiny  Act  "  in  1689  and  so 
called  until,  in  1879,  the  Articles  were  merged  with  it  and  the  name  of 
Army  Discipline  Act  given  to  the  result.  This  was  re-enacted  in  1881 
as  the  "Army  Act/'  which  name  it  still  retains  with  the  addition  of  the 
year  in  which  it  was  passed,  being  re-enacted  annually;  Parliament  thus 
retaining  control  over  the  military  establishment. 

For  the  full  history  of  the  development  of  the  military  law  of  England, 
see  "Summary  of  Military  Law  "  by  Story;  "Manual  of  Military  Law 
of  England,  War  Office,  1894  " ;  and  "Davis'  Military  Law."  The  latter 
also  contains,  in  the  Appendix,  "The  Prince  Rupert  Articles,"  1673; 
"The  British  Articles  of  1774  ";  "The  American  Articles  of  1776,  of 
May  31,  1786,  and  of  April  10,  1806." 

5 


6  MILITARY  LAW 

9.  The  original  American  Articles  of  War  were  adopted 
from  the  British  Articles  and  the  laws  governing  the 
British  army  at  that  time,  by  resolution  of  the  Continental 
Congress,  June  30,  1775.     A  new  code  was  substituted 
September  20.  1776,  which  was  amended  in  1786.  and  by 
the  act  of  September  29,   1789,   those  rules  previously 
established    were    recognized    and    continued    in    force 
under  the  Constitution.     These  Articles  were  rearranged, 
modified  and  promulgated  by  Act  of  Congress  of  April  10, 
1806,   and  continued  in  force  with  a  few  modifications 
until  the  Act  of  June  22,  1874,  and  were  later  included 
as  Sec.  1342  of  the  Revised  Statutes  of  the  United  States 
of  1878.    Various  amendments  have  been  made,  but  there 
has  been  no  complete  revision  thereof,  and,  as  amended 
from  time  to  time,  these  Articles  are  still  (1906)  in  force.1 

10.  Congress  derives  the  power  to  enact  rules  for  the 
government  and  regulation  of  the  Army  from  the  8th 
section  of  Article  I  of  the  Constitution,  and  in  exercise 
of  that  power  has  enacted  the  Articles  of  War,  Revised 
Statutes,  Sec.  1342.2 

ARMY  REGULATIONS,3   ORDERS,    ETC. 

11.  In  addition  to  the  Rules  and  Articles  of  War  and 
other   statutory    enactments    of   Congress,    the   military 
establishment  of  the  United  States  is  governed  by  regu- 
lations issued  by  the  President  pursuant  to  or  in  execution 
of  a  statute,  or  in  accordance  with  acts  of  Congress  grant- 

1  The  following  Articles  have  been  amended  or  repealed:  Art.  17  by 
Act  of  July  27, 1892;  Art.  60,  by  Act  of  March  2, 1901;  Art.  62,  by  Act 
of  June  18,  1898;  Art.  72,  by  Act  of  July  5,  1884;  Art.  80,  repealed 
by  Act  of  June  18,  1898;  Art.  83,  amended  by  Act  of  March  1,  1901; 
Art.  91,  modified  by  Sec.  4,  Act  of  July  27,  1892;  Art.  94,  repealed  by 
Act  of  March  2,  1901;   Art.  103,  amended  by  Act  of  April  11,  1890; 
Art.  104,  amended  by  Act  of  July  27,  1892;  Art.  110,  repealed  by  Act 
of  June  18,  1898. 

2  Carter  v.  Roberts,  177  U.  S.  496-497. 

3  See  Lieber  on  Regulations. 


ARMY  REGULATIONS,  ORDERS,  ETC        7 

ing  specific  authority  therefor,  and  by  rules,  regulations 
and  orders  issued  by  him  as  Commander-in-Chief  of 
the  armies  of  the  United  States,  and  also  by  established 
customs  and  usages  of  the  service. 

12.  Army  Regulations  are  administrative  rules  as  dis- 
tinguished from  enactments  of  Congress.  They  may  be 
divided  into  several  classes,  viz. : 

a.  Those  which  have  received  the  sanction  of  Congress. 
These  are  really  legislative  regulations  and  cannot  be 
changed  or  altered  by  executive  authority  unless  the 
regulations  themselves  so  provide.  They  are  of  equal 
force  with  any  other  statute,  and  can  only  be  changed, 
modified  or  repealed  by  legislative  enactment. 

6.  Those  made  pursuant  to,  or  in  execution  of,  a  statute, 
which  are  supplemental  thereto  and  which,  in  the  absence 
of  sufficient  legislative  regulation,  prescribe  means  for 
carrying  it  out.1  These,  if  not  prohibited  by  statute, 
may  be  modified  by  the  executive  authority;2  but  as  they 
have  all  the  force  of  legal  enactments  to  which  they  con- 
form, they  cannot  be  changed  or  modified  except  in 
accordance  with  the  provisions  thereof,  and  until  so  modi- 
fied they  are  as  binding  on  the  authority  that  made  them 
as  on  others;  nor  can  exceptions  to  them  in  individual 
cases  be  legally  made. 

c.  Those  emanating  from,  and  depending  on,  the  con- 
stitutional authority  of  the  President  as  Commander- 
in-Chief  of  the  Army  and  as  Chief  Executive,  but  not 
made  in  supplement  to  some  particular  statute.  The 
authority  which  makes  them  can  modify  or  suspend  them 
as  to  any  case,  or  class  of  cases,  or  generally. 

The   regulations  emanating   from,  and   depending  on, 

1  Examples  of  regulations  of  this  class  are  those  relating  to  the  exam- 
ination of  enlisted  men  for  commissions,  under  the  Act  of  Congress, 
July  30,  1892,  and  the  Executive  Order  of  June  12,  1905,  prescribing 
limits  of  punishment. 

2  United  States  v.  Eliason,  16  Pet.  (41  U.  S.)  291. 


8  MILITARY  LAW 

the  constitutional  power  of  the  President  as  Commander- 
in-Chief  and  in  his  duty  as  Executive,  "to  take  care  that 
the  laws  be  faithfully  executed/'  are  generally  promulgated 
through  the  Secretary  of  War,  and  have  all  the  force  of 
law  because  they  are  promulgated  by  him  under  the 
authority  of  law,  and  they  are  binding  upon  all  within  the 
sphere  of  his  legal  and  constitutional  authority.1 

13.  Army    Regulations    when    directly    approved    by 
Congress  have  the  absolute  force  of  law.     When  not  so 
approved  they  have  the  force  of  law  when  founded  on  the 
President's  constitutional  power  as  Commander-in-Chief 
of  the  Army,  or  when  consistent  with,  and  supplementary 
to,  the  Acts  of  Congress  in  reference  to  the  Army;2  but 
they  do  not  control  subsequent  express  provisions  of  law.3 
They  are  intended  for  the  government  of  the  officers  and 
enlisted  men   of  the  Army  and  the  agents  of  the  War 
Department,  and  when  not  approved  by  Congress  do  not 
bind  the  Commander-in-Chief  nor  the  head  of  the  War  De- 
partment; they  not  being  regarded  as  in  the  military  service 
in  the  sense  of  such  regulations,  but  as  civil  officers.4 

Army  Regulations  are  mandatory,  and  are  intended  to 
govern  the  conduct  of  the  Army,  and  all  work  done  under 
the  superintendence  of  its  officers,  wherever  assigned  to 
duty.5 

14.  Departmental  Regulations.    These  are  provided  for 
by  Sec.  161,  Revised  Statutes,  which  authorizes  the  head 
of  each  Department  "to  prescribe  regulations,  not  incon- 
sistent with  law,  for  the  government  of  his  Department, 
the  conduct  of  its  officers  and  clerks,  the  distribution  ajid 
performance  of  its  business,  and  the  custody,  use  and 

1  Gratiot  v.  U.  S.,  4  How.  (45  U.  S.)  117;  U.  S.  v.  Eliason,  16  Pet. 
(41  U.  S.)  301;  Kurtz  v.  Moffitt,  115  U.  S.  503. 

2  Matter  of  Smith,  23  Ct.  Cl.  452;  Swaim  v.  U.  S.,  165  U.  S.  553. 
8  Morrison's  Case,  13  Ct.  Cl.  1. 

4  U.  S.  v.  Burns,  12  Wall.  (79  U.  S.)  246;   Matter  of  Smith,  24  Ct. 
Cl.  209. 

5  Moses  v.  U.  S.,  116  Fed.  Rep.  526. 


GENERAL  AND  SPECIAL  ORDERS  9 

preservation  of  the  records,  papers  and  property  apper- 
taining to  it." 

The  word  "  Department "  as  here  used  means  an  Execu- 
tive Department  and  not  a  subdivision  or  bureau  of  such 
Department. 

15.  The  Military  Academy  Regulations  are  special  regu- 
lations for  the  government  of  the  cadets  at  West  Point, 
are  issued  by  the  President  of  the  United  States,  and  are 
as  binding  as  other  regulations  issued  for  the  Army  at 
large,  of  which  they  are  legally  a  part.1 

GENERAL    AND    SPECIAL   ORDERS 

1 6.  All  rules  and  orders  issued  by  the  Secretary  of  War 
as  the  constitutional  organ  of  the  President  for  the  ad- 
ministration of  the  military  establishment  are  to  be  re- 
ceived as  the  acts  of  the  Executive,  and  as  such  are  binding 
upon  all  within  the  sphere  of  his  authority.2 

The  legal  orders  of  commanders  to  their  subordinates 
are  binding  upon  those  subordinates.  The  Articles  of  War 
(Art.  21)  provide  that  any  officer  or  soldier  who,  on  any 
pretense  whatsoever,  disobeys  any  lawful  command  of  his 
superior  officer  shall  suffer  death,  or  such  other  punish- 
ment as  a  court-martial  may  direct. 

17.  Orders  are  either  written  or  verbal.     Written  orders 
are  either  general  or  special.     General  orders  of  the  War 
Department  are  those  made  public  to  the  Army  at  large. 
Special  orders  affect  only  certain  individuals  or  cases.3 

1  See  Sec.  1094,  R.  S. 

2  U.  S.  v.  Eliason,  16  Pet.  (41  U.  S.)  291. 

3  General  or  special  orders  issued    from  the  War  Department  or 
Headquarters  of  the  Army  may  ordinarily  be  proved  by  printed  official 
copies  duly  authenticated  by  the  impressed  stamp  of  The  Military 
Secretary's  Office  in  the  usual  form,  and  courts-martial  will  take  judicial 
notice  of  such  authenticated  orders  as  genuine  and  correct.     "Copies 
of  any  records  or  papers  in  the  War  Department  or  any  of  its  bureaus, 
if  authenticated  by  the  impressed  stamp  of  the  bureau  or  office  having 
custody  of  the  originals,  may  be  admitted  in  evidence  equally  with  the 


10  MILITARY  LAW 

General  or  special  orders  issued  by.  a  military  com- 
mander outside  the  War  Department  or  Headquarters  of 
the  Army,  such  as  Division  or  Department  Commanders, 
commanders  of  armies,  corps,  division  or  brigade  in  time 
of  war,  etc.,  are  promulgated  for  their  commands,  in  ex- 
ercise of  their  authority  as  representing,  within  the  terri- 
torial limits  of  their  command,  power  derived  from  the 
Commander-in-Chief,  or,  in  court-martial  cases,  authority 
expressly  conferred  upon  them  by  statute.  Such  orders 
must  not  be  in  conflict  with  the  statutes  or  with  the 
orders  of  superior  authority. 

Verbal  orders  are  legal  commands  issued  by  a  superior 
to  a  subordinate  viva  voce,  and  violation  thereof,  as  well 
as  of  written  orders,  may  be  made  the  subject  of  charges 
under  the  21st  Article  of  War. 

1 8.  Standing  orders  are  in  the  nature  of  executive  in- 
structions that  are  intended  to  govern  those  to  whom 
issued  for  a  period  of  time  and  until  changed  or  revoked. 
They  generally  relate  to  matters  of  police  or  discipline,  or 
local  regulations. 

THE    UNWRITTEN    LAW)      LEGAL    PRECEDENTS;      DECISIONS 

OF   COURTS 

19.  The  unwritten  law  consists  of  the  principles,  cus- 
toms and  usages  of  the  service  derived  from  immemorial 
usage  in  time  of  peace  or  war.     They  are  recognized  by 
the  84th  Article  of  War,  being  therein  made  applicable  to 
the  administration  of  justice  in  case  of  doubt  not  ex- 
original  thereof,  before  any  court-martial,  court  of  inquiry,  or  in  any 
administrative  matter  under  the  War  Department."     (G.  O.  91,  War 
Department,  A.  G.  O.,  1900;  Dig.  Op.  J.  A.  G.  1312.     See  Sec.  882, 
Revised  Statutes  U.  S.) 

There  is  no  rule  of  law  or  practice  requiring  civil  courts  to  take 
notice  of  orders  issued  by  a  military  commander  in  the  exercise  of 
the  authority  conferred  upon  him.  (Burke  v.  Miltenberger,  19  Wall. 
(86  U.  S.)  519,  526.) 


LEGAL  PRECEDENTS,  DECISIONS,  ETC.  11 

plained  in  those  Articles.  These  customs  must,  however, 
have  the  sanction  of  long,  unquestioned  and  continuous 
usage.  When  this  is  the  case  they  are  to  be  observed  by 
courts-martial,  unless  manifestly  wrong  by  reason  of 
being  in  conflict  with  a  statute  or  contrary  to  the  precepts 
of  morality  and  humanity.  An  example  of  a  custom 
having  the  force  of  law  is  that  of  the  witness  before  a 
court-martial  being  sworn  by  the  Judge- Advocate;  the 
law  not  providing  who  shall  administer  the  oath. 

20.  "  Usages  have  been  established  in  every  department 
of  the  government,  which  have  become  a  kind  of  common 
law  and  regulate  the  rights  and  duties  of  those  who  act 
within  their  respective  limits."     "  Usage  does  not  alter 
law,  but  it  is  evidence  of  the  construction  given  it."     It 
does  not  have  the  force  and  character  of  unwritten  law  until 
by   " immemorial  and  undisputed"  usage  it  has  become 
a  custom  of  war  which  is  entitled  to  be  received  as  a  part 
of  the  common  law  of  the  Army,  and  until  it  does  become 
so  it  cannot  be  pleaded,  except  in  mitigation  of  punish- 
ment.   Evidence  of  a  local  custom  is  not  admissible  unless 
it  is  shown  to  be  known  to  both  parties.1 

» 

LEGAL  PRECEDENTS,  DECISIONS  OF  COURTS,  ETC. 

21.  The  decisions  of  the  courts  upon  questions  of  doubt- 
ful  interpretation  form    precedents    in    like  cases  and 
determine  the  law.    They  are  to  be  followed  in  the  deter- 
mination of  such  questions  so  long  as  those  decisions  or 
rulings  of  the  courts,  are  not  reversed. 

22.  "  Where  a  court  has  jurisdiction,  it  has  a  right  to 
decide  any  question  which   occurs  in  the  cause;    and 
whether  its  decisions  be  correct  or  otherwise,  its  judg- 
ments, until  reversed,  are  regarded  as  binding  in  every 
other  court.     But  if  it  act  without  authority,  its  judgments 

1  Chateaugay  Iron  Co  v.  Blake,  144  U.  S.  476. 


12  MILITARY  LAW 

and  orders  are  nullities;  they  are  not  voidable  but  simply 
void"1 

Stare  Decisis.  -  -  The  doctrine  of  stare  decisis  —  to 
abide  by  precedent  or  to  adhere  to  decided  cases — pre- 
vails in  civil  courts  with  respect  to  decisions  of  other 
courts  made  directly  upon  the  point  in  issue.  Though 
the  duly  approved  decisions  of  courts-martial  are  not 
binding  upon  other  courts-martial,  they  should  be  well 
considered  and,  as  a  rule,  followed. 

23.  The  decisions  and  opinions  of  the  heads  of  depart- 
ments of  government  in  matters  which  properly  come  be- 
fore them  relating  to  the  military  establishment,  though 
not  in  themselves  law,  are  intended  to  give  interpretation 
of  the  law  and,  as  an  aid  in  forming  judgment,  it  is  gen- 
erally safer  and  better  to  adopt  them. 

24.  Opinions  of  the  Attorney-General. — While  Attor- 
neys-General have  never  claimed  for  their  opinions  the 
force  of  law,  it  has  always  been  regarded  as  the  proper 
practice  to  follow  their  guidance;    and  Congress,  while 
never  directly  legislating  upon  this  point,  seems  to  con- 
template that  their  opinions  are  to  be  given  practical 
effect  and  should  be  followed    Such  opinions  are,  there- 
fore, binding  upon  the  Army  when  so  directed  in  orders 
of  the  War  Department. 

25.  Opinions   of  the   Judge-Advocate-General. — The 
opinions  of  the  Judge- Advocate-General  upon  questions  of 
military  law,  approved  by  the  Secretary  of  War,  are  bind- 
ing upon    the  military  establishment  until  overruled  or 
reversed.2 

1  EUiott  v.  Peirsol,  1  Pet.  (26  U.  S.)  328. 

2  See  Deming  v.  McClaughry,  113  Fed.  Rep.  641. 


CHAPTER  III 
MILITARY  TRIBUNALS 

26.  The  tribunals  for  the  trial  of  military  persons  and 
offenses,  under  the  laws  for  the  government  of  the  armies 
of  the  United  States,  are  as  follows: 

1st.  The  statutory  tribunals,  viz. : 

1.  General  Courts-martial. 

2.  Regimental  Courts-martial. 

3.  Garrison  Courts-martial. 

4.  Summary  Courts. 

2d.  The  Military  Commission,  a  tribunal  hereafter  ex- 
plained as  belonging  to  the  laws  of  war,  which  is  recognized 
by  Sec.  1343,  Revised  Statutes  United  States,  as  a  tribunal 
for  the  trial  of  spies.1 

These  courts  are  not  a  part  of  the  judicial  system  of  the 
United  States,  but  are  executive  agencies  and  have  juris- 
diction only  within  the  limits  prescribed  by  law.  Being 
courts  of  special  jurisdiction,  the  fact  that  they  have  juris- 
diction must  appear  in  every  case,  because  without  it  their 
acts  are  wholly  void. 

27.  Not  Part  of  the  Judicial  System  of  the  United 
States;   Their  Decisions  not  Subject  to  Appeal  to  Civil 
Courts. — Courts-martial   not  being  part   of  the  judicial 
system  of  the  United  States,  no  appeal  can  be  taken  from 
their  judgments  to  any  civil  court,  and  their  acts  can  only 

1  See  post,  par.  32. 

13 


14  MILITARY  LAW 

be  reviewed  and  modified  by  the  legal  reviewing  authority, 
or  by  the  President  of  the  United  States,  and  in  the  man- 
ner prescribed  by  law. 

They  are  not  " courts  of  record"  within  the  legal  mean- 
ing of  that  term,  their  existence  being  temporary  and  de- 
rived from  orders  issued  by  commanders  authorized  to 
convene  and  to  dissolve  them  at  will.  They  are,  however, 
lawful  tribunals  with  plenary  jurisdiction  over  military 
offenses  and  with  authority  to  finally  determine  any  case 
over  which  they  have  jurisdiction,  as  have  civil  courts 
over  offenses  within  their  cognizance,  and  their  proceed- 
ings, when  confirmed  as  provided  by  law,  are  not  open 
to  review  by  the  civil  tribunals,  except  for  the  purpose 
of  ascertaining  whether  the  military  court  had  jurisdic-' 
tion  of  the  person  and  subject-matter,  whether  the  statutory 
rules  prescribed  for  exercise  of  jurisdiction  have  been 
complied  with,  and  whether,  though  having  such  jurisdic- 
tion, it  had  exceeded  its  powers  in  the  sentence  pronounced; 
and  in  such  cases  the  review  may  be  had  by  habeas  corpus 
proceedings  in  the  United  States  courts.1 

28.  Their  jurisdiction  is  over  criminal  offenses  alone  and 
does  not  extend  to  civil  cases.  They  also  take  into  con- 
sideration matters  that  never  come  before  a  civil  court 
because  they  act  upon  questions  affecting  the  honor  and 
discipline  of  the  Army,  and  they  partake  of  the  character 
of  a  " court  of  honor,"  as  when  they  try  an  officer  charged 
with  " conduct  unbecoming  an  officer  and  a  gentleman," 
or  an  officer  or  enlisted  man  for  "conduct  to  the  prejudice 
of  good  order  and  military  discipline." 

1  In  re  Davison,  21  Fed.  Rep.  618;  In  re  McVey,  23  Fed.  Rep.  878; 
In  re  Vidal,  179  U.  S.  126;  Carter  v.  Roberts,  177  U.  S.  496;  Carter  v. 
McClaughry,  183  U.  S.  365;  McClaughry  v.  Deming,  186  U.  S.  69. 

The  judgments  of  the  court-martial  may,  however,  be  brought  in 
question  in  other  courts  if  an  illegal  punishment  is  alleged  to  have  been 
awarded,  as  in  an  action  in  a  State  court  against  the  reviewing  officer, 
or  a  member  of  the  court,  sued  therein  for  damages  incurred  by  reason 
of  the  alleged  illegal  punishment. 


MILITARY  TRIBUNALS  15 

29.  The  functions  of  a  court-martial  are  not  those  of  a 
criminal  court  in  which  the  prosecution  is  subject  to  tech- 
nical objections  such  as  are  sometimes  used  to  interfere 
with  justice  or  favor  a  criminal,  but  its  purpose  is  to  ascer- 
tain all  the  facts,  to  get  at  the  whole  truth  and  to  make  its 
judgments  according  thereto,  avoiding  the  strict  techni- 
calities available  in  civil  courts,  and  after  as  full  an  ex- 
amination as  possible,  to  decide  the  case  according  to  the 
facts  established  by  evidence,  and  according  to  the  pro- 
visions of  the  Rules  and  Articles  for  the  government  of  the 
armies  of  the  United  States,  and  if  any  doubt  should 
arise,  not  explained  by  said  Articles,  then  "  according  to 
their  conscience,  the  best  of  their  understanding,  and  the 
custom  of  war  in  like  cases/7 1 

30.  The  court-martial  not  only  determines  questions  of 
fact,  but   is   also   called   upon   to    decide   questions   of 
law. 

Where  the  court-martial  has  acted  without  jurisdiction 
its  acts  and  judgments  are  illegal  and  void,2  and  for  any 
illegal  punishment  awarded  by  it,  and  executed,  the  mem- 
bers, and  the  officer  who  executes  the  sentence,  are  liable 
for  damages  in  a  civil  suit.3  Where,  however,  the  court 
acts  under  proper  orders  and  in  good  faith,  and  the  pro- 
ceedings have  been  duly  approved,  actual  damages 
awarded  by  a  jury  will  be  nominal.4 

But  having  jurisdiction  of  the  case,  its  judgments,  when 
approved  as  required,  rest  on  the  same  basis  and  are  sur- 
rounded by  the  same  considerations  which  give  conclu- 
siveness  to  the  judgments  of  other  legal  tribunals,  as  well 
the  lowest  as  the  highest,  under  like  circumstances.  The 

1  84th  Article  of  War. 

2  Barrett  v.  Hopkins  7  Fed.  Rep.  312;    Dynes  v.  Hoover,  20  How. 
(61  U.  S.)  65. 

8  Ives,  p.  35;  Simmons  on  Courts-martial,  193,  Sec.  459;  Winthrop, 
Vol.  2,  p.  126  et  seq 

4Wmthrop,  Vol.2  p.  127. 


16  MILITARY  LAW 

exercise  of  discretion,  within  authorized  limits,  cannot  be 
assigned  for  error  and  made  the  subject  of  review.1 

31.  Jurisdiction  in  Certain  Cases. — By  entrance  into 
the  military  service  the  citizen  becomes  a  soldier.  His 
relations  to  the  state  and  the  public  are  changed.  He 
acquires  a  new  status,  with  correlative  rights  and  duties; 
and  although  he  may  violate  his  contract  obligations,  his 
status  as  a  soldier  is  unchanged.2 

He  surrenders  certain  of  his  personal  rights  as  a  citizen 
and  adds  to  his  personal  responsibility  by  also  becoming 
subject  to  military  law,  so  that  by  the  same  act  he  may 
violate  the  laws  of  both  jurisdictions,  military  and  civil, 
and  be  punished  by  each.  The  civil  courts  punish  for 
breach  of  the  civil  law,  while  the  military  courts  may  pun- 
ish the  same  act  as  a  violation  of  the  Rules  and  Articles  of 
War.  His  conviction  or  acquittal  by  the  courts  of  one 
system  does  not  relieve  him  from  responsibility  to  the  courts 
of  the  other,  and  he  cannot  plead  conviction  or  acquittal 
by  the  courts  of  one  in  bar  of  jurisdiction  of  the  courts  of 
the  other.  In  this  sense  only,  the  jurisdiction  of  the 
military  and  civil  courts  is  concurrent;  that  one  may 
first  try  him  which  first  assumes  jurisdiction  over  him,  for 
the  offense  against  the  law  which  it  administers. 

The  Fifth  Amendment  to  the  Constitution,  providing 
that  "no  person  shall  be  held  for  a  capital,  or  otherwise  in- 
famous, crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,"  excepts  "  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service,  in  time  of 
war,  or  public  danger."  A  soldier  therefore  gives  up  some 
of  the  constitutional  rights  possessed  by  the  citizen,3  in 
fact,  he  forfeits  such  of  his  civil  rights  as  interfere  with  the 
duties  and  obligations  acquired  by  his  new  status,  as  pre- 

1  Ex  parte  Reed,  100  U.  S.  23. 

2  In  re  Grimley,  137  U.  S.  147-152. 

3  See  U.  S.  v.  Clark,  31  Fed.  Rep.  713. 


MILITARY  TRIBUNALS  17 

scribed  by  the  laws  established  for  the  government  and 
regulation  of  the  Army;  but  he  retains  all  others  the  ex- 
ercise of  which  is  not  inconsistent  with  military  govern- 
ment and  discipline,  for  the  reason  that  the  soldier  in  giving 
up  rights  of  citizenship  is  not  required  to  give  up  more 
than  is  absolutely  necessary  to  the  performance  of  his 
duties  and  obligations  as  a  soldier. 

32.  Military  Commissions.  —  Military  commissions  de- 
rive their  authority  primarily  and  mainly  from  the  laws  of 
war,  and  are  not  statutory  tribunals,  though  recognized 
as  legal  and  appropriate  for  trial  of  spies  (Sec.  1343,  Re- 
vised Statutes).  They  are  organized  under  the  laws  of 
war  and  under  martial  law,  as  a  military  necessity,  for 
cases  involving  persons  and  offenses  outside  the  powers  and 
duties  conferred  upon  the  statutory  tribunals  and  there- 
fore beyond  the  jurisdiction  of  courts  provided  for  in  the 
Rules  and  Articles  of  War.1 

1  See  Chapter  XXX,  post,  par.  682  et  seq. 

&JJL^c 

^     * 


Aj^      xrUsA. 

(  ^ 


-"I 


CHAPTER  IV 
GENERAL  COURTS-MARTIAL 

33.  The  power  to  convene  general  courts-martial  is  con- 
ferred upon  certain  officers  by  the  72d  and  73d  Articles  of 
War;  the  former  conferring  a  general  power  applicable  to 
all  times,  and  the  latter  relating  to  "time  of  war";  and 
it  is  also  granted  to  the  Superintendent  of  the  U.  S.  Mili- 
tary Academy  by  Sec.   1326,  -Revised  Statutes  of  the 
United  States. 

34.  In  Time  of  Peace  or  War.— The  72d  Article  of  War. 

Article  72. — Any  general  officer  commanding  an  army, 
a  territorial  division  or  a  department,  or  colonel  com- 
manding a  separate  department,  may  appoint  general 
courts-martial  whenever  necessary.  But  when  any  such 
commander  is  the  accuser  or  prosecutor  of  any  officer 
under  his  command  the  court  shall  be  appointed  by  the 
President;  and  its  proceedings  and  sentence  shall  be  sent 
directly  to  the  Secretary  of  War,  by  whom  they  shall  be 
laid  before  the  President,  for  his  approval  or  orders  in  the 
case.1 

Under  this  article  any  general  officer  commanding  an 
army,  a  territorial  division  or  a  department,  or  a  colonel 
commanding  a  separate  department,  may  convene  a  general 
court-martial  whenever  charges  are  made  and  he  deems 
that  the  circumstances  demand  it,  and  this  power  he  has 
in  time  of  war  as  well  as  in  peace,  wherever  the  troops  may 
be,  at  home  or  abroad.  The  grant  of  power  is  not  given 

1  Act  July  5,  1884;  see  Article  72,  Chapter  XXXI,  post,  par.  779. 

18 


GENERAL  COURTS-MARTIAL  19 

to,  and  cannot  be  exercised  by,  any  officer  of  lower  grade  • 
than  colonel,  and  only  by  a  colonel  when  commanding  a 
separate  department,  either  by  assignment  to  such  com- 
mand by  the  President  of  the  United  States,  directly,  or 
when  he  succeeds  to  such  command  under  the  provisions 
of  Army  Regulations,  which  provide  that,  in  the  event 
of  the  death  or  disability  or  temporary  absence  of  the 
permanent  commander  of  a  territorial  division  or  depart- 
ment from  the  limits  of  his  command,  the  senior  line 
officer  present  and  on  duty  therein  will  exercise  the  com- 
mand of  the  division  or  department,  unless  otherwise 
ordered,  until  relieved  by  proper  authority.1 

35.  The  commander  of  a  division  who  is  also  duly  acting 
as  commander  of  a  department  in  the  division,  in  the 
absence  of  the  regular  department  commander,  is  author- 
ized to  convene  general  courts-martial  under  the  provisions 
of  this  article.2 

36.  The  President  of  the  United  States,  in  virtue  of  his 
power  as  constitutional  Commander-in-Chief  of  the  Army 
of  the  United  States,  has  power  to  convene  such  courts 
and  to  review  their  proceedings,  and  it  is  his  duty  to  do  so, 
under  the  provisions  of  this  article,  when  any  commander 
authorized  by  it  to  convene  a  court-martial  "is  the  accuser 
or  prosecutor  of  any  officer  under  his  command,"  and  also 
in  cases  where  an  officer  having  been  dismissed  by  him  in 
time  of  war  makes  application  for  trial  as   provided  by 
Sec.  1230,  Revised  Statutes  United  States.     It  is  to  be 
noted  that,  according  to  the  above  article,  the  commander 
must  be  either  the  accuser  or  prosecutor  of  an  "officer"- 
under  his  command;   the  prohibition  does  not  apply  to 
other  persons. 

In  all  such  cases  the  proceedings  and  sentence  are  sent 
direct  to  the  Secretary  of  War  to  be  laid  before  the  Presi- 
dent for  his  action  thereon. 

1  A.  R.  193.  2  Dig.  Op.  J.  A.  G.  190. 


20  MILITARY  LAW 

37.  Commander   of   Army,  etc. — The   term  "general 
officer  commanding  an  army"  includes  not  only  generals 
commanding  separate  armies,  designated  as  such,  but  the 
lieutenant-general  or  general  officer  who  may  be  assigned 
by  the  President  to  command  the  Army  of  the  United 
States.     It  also  includes  corps  commanders  in  command 
of  a  separate  army  corps  as  being,  in  this  respect,  similarly 
situated  as  commanding  "a  separate  army."     It  has  been 
decided  by  the  Secretary  of   War  that  under  the  107th 
Article  of  War  a  corps  commander  is  held  to  be  a  com- 
mander of  an  army  in  the  field  when  his  corps  is  not  a 
constituent  part  of  a  larger  body,  and  he  may  convene  a 
court-martial  under  this  article  and  confirm  sentences  of 
dismissal  of  officers.1 

38.  "A  corps  commander  may  also  convene  such  court 
where  the  division  or  separate  brigade  commander  is  the 
accuser  or  prosecutor,  by  authority  of  the  Act  of  December 
24,  1861 "  (now  73d  Article  of  War).     "  But  sound  prin- 
ciples of  public  policy  require  that  only  the  highest  military 
authority  in  any  army  should  be  vested  with  the  final 
power  of  the  confirmation  and  execution  of  sentences  of 
death  and  dismissal,  and  the  Act  of  December  24,  1861, 
has  never  been  construed  as  conferring  this  power  upon  a 
corps  commander  when  his  command  is  not  a  separate  and 
distinct  army,  but  only,  as  in  the  case  of  a  corps  of  the  Army 
of  the  Potomac,  a  constituent  part  of  a  larger  body."2 

39.  The  power  to  convene  courts-martial  is  a  personal 
power  as  conferred  by  the  statute  and  cannot  be  delegated 
to  an  inferior  or  to  a  staff  officer ;  a  staff  officer,  therefore, 
cannot,  in  the  absence  of  the  proper  commander,  act  for 
him  by  convening  courts-martial  in  his  name,  nor  act  upon 
proceedings  of  courts-martial  under  like  circumstances. 

1  Cir.  30,  War  Department,  A.  G.  O.,  August  9,  1898. 

2  Dig.  Op.  J.  A.  G.  191.     See  Cir.  30,  War  Department,  A.  G.  O., 
August  9,  1898. 


GENERAL  COURTS-MARTIAL  21 

The  officers  designated  by  the  Articles  are  the  only  ones 
to  decide  whether  a  court-martial  shall  be  ordered  in  any 
case  or  not,  and  their  decision  is  final.  An  officer  or  soldier 
cannot  demand  that  charges  submitted  by  him  shall  be 
brought  to  trial-,  nor  can  any  person  against  whom  charges 
have  been  made  demand  trial  except  in  those  cases  specially 
provided  by  law,  as  by  the  30th  Article  of  War,  and  Sec. 
1230,  Revised  Statutes.1 

40.  The  authority  of  an  officer  authorized  to  convene 
general  courts-martial  extends  to  the  convening  of  such 
courts   for   the   trial    of  officers  and  soldiers  under  his 
command.     "It   is    complete   and    exclusive   within   his 
jurisdiction,  and  it  is  within  his  jurisdiction  to  determine, 
in  each  instance,  whether  a  court  shall  be  ordered  at  all, 
or,  if  ordered,  when  and  where  (within  his  command) 
it  shall  be  convened."  2 

Article  72  makes  the  commanders  named  in  the  article 
judges,  in  general,  of  the  expediency  of  ordering  such 
courts  in  particular  instances.3 

41.  In  Time  of  War  Only. — The  73d  Article  of  War. 

Article  73. — In  time  of  war  the  commander  of  a  division, 
or  of  a  separate  brigade  of  troops,  shall  be  competent  to 
appoint  a  general  court-martial.  But  when  such  com- 
mander is  the  accuser  or  prosecutor  of  any  person  under 
his  command,  the  court  shall  be  appointed  by  the  next 
higher  commander. 

The  power  to  convene  general  courts-martial  is,  by 
this  article,  extended,  in  time  of  war,  to  the  commander 
of  a  division  or  a  separate  brigade,  but  in  case  such  com- 
mander is  the  accuser  or  prosecutor  of  "any  person" 
under  his  command  the  court  must  be  appointed  by  the 
next  higher  commander.  This  article  differs  in  terms, 

1  Davis'  Military  Law,  p.  19;  Dig.  Op.  J.  A.  G.  184. 

2  Winthrop's  Abr.,  3d  Ed.,  p.  25. 

3  Davis'  Military  Law,  p.  19. 


MILITARY  LAW 

as  to  the  commander  being  the  " accuser  or  prosecutor/' 
from  Article  72,  in  its  application  to  "any  person/'  whilst 
Article  72  is  limited  to  "any  officer." 

42.  To  constitute  a  separate  brigade  under  this  article 
it  rnust  be  actually  such,  acting  separately  or  as  a  distinct 
command,  as  an  organized  brigade  detached  from  and 
unconnected  with  any  division,  or  be  designated  in  orders 
as  a  "separate  brigade."  1    The  fact  that  it  is  a  separate 
brigade  should  appear  in  the  proceedings. 

The  determination  as  to  whether  a  condition  of  war 
exists,  is  within  the  exclusive  jurisdiction  of  the  political 
department  of  the  government,  and  the  courts  take  judi- 
cial notice  of  such  determination  and  are  bound  thereby,2 

43.  Accuser  or  Prosecutor.— An  "accuser"  is  one  who 
makes  the  accusation.     A  "prosecutor,"  in  the  general 
meaning  of  the  term,  is  one  who  institutes  and  carries  on 
proceedings  against,  or  prosecutes,  another  for  a   crime 
in  the  name  of  the  government. 

The  word  as  used  in  Article  72  and  Article  73  is  not 
limited  to  this  meaning,  but  is  intended  to  designate  the 
person  who,  having  authority  to  convene  a  general  court- 
martial,  enters  into  the  case  with  a  hostile  animus  and 
an  intent  to  secure  the  conviction  and  punishment  of 
the  accused,  and  whose  hostile  animus  prevents  impartial 
action. 

The  question  as  to  whether  a  commander  is  the 
"accuser"  or  "prosecutor"  under  either  of  the  foregoing 
articles  must  be  determined  by  his  animus  in  the  case. 
If  he  has  simply  directed  the  charges  to  be  preferred  as 
a  matter  of,  and  in  line  with,  his  official  duty,  he  cannot 
be  held  to  have  such  animus  as  would  constitute  him  an 
"accuser"  or  "prosecutor."  But  if  he  has  any  personal 
interest  in  the  subject  of  the  charges,  or  has  shown  mani- 

1  Dig.  Op.  J.  A.  G.  192  et  seq. 

2  Hamilton  v.  McClaughry,  136  Fed.  Rep.  445,  449. 


GENERAL  COURTS-MARTIAL  23 

fest  hostility  toward  the  accused,  objection  may  be  made 
to  the  legal  constitution  of  the  court,  and  the  accused 
is  entitled  to  introduce  evidence  of  the  fact  before  the 
court,  or  in  an  appeal  to  higher  authority. 

The  provision  of  this  Article  (and  of  Article  72),  that 
when  the  convening  commander  is  the  "  accuser  or  prose- 
cutor" the  court  shall  be  convened  by  the  next  higher 
commander  (or  by  the  President  under  Article  72),  being 
expressly  restricted  to  general  courts,  has  no  application 
to  regimental  or  garrison  courts.  The  same  principle, 
however,  should  properly  be  applied  to  proceedings 
before  these  courts,  if  it  can  be  done  without  serious  em- 
barrassment to  the  service.1 

44.  Superintendent  of  the  Military  Academy. — The 
Superintendent  of  the  Military  Academy  has  power  to 
convene'  general   courts-martial   for   the   trial   of  cadets 
and  to  execute  the  sentences  of  such  courts,  except  the 
sentences  of  suspension  and  dismission,  subject  to  the 
same  limitations  and  conditions  now  existing  as  to  other 
courts-martial.2 

The  general  courts-martial  herein  authorized  are,  in 
their  organization,  composition,  and  method  of  conducting 
business,  subject  to  the  same  limitations  and  conditions 
existing  as  to  other  courts-martial.  Under  the  limitations 
of  this  section,  sentence  of  suspension  or  dismission, 
though  approved  by  the  Superintendent,  cannot  be  car- 
ried into  effect  without  the  order  of  the  President  of  the 
United  States,  usually  given  through  the  Secretary  of  War. 

45.  Any  officer  competent  to  appoint  a  court-martial 
may  appoint  a  judge-advocate  for  the  same.3 

1  Dig.  Op.  J.  A.  G.  189. 

2  See  sec.  1326,  Revised  Statutes  United  States. 
8  Article  74. 


CHAPTER  V 
COMPOSITION   OF   GENERAL   COURTS-MARTIAL 

46.  Composed    of    Officers. — "  General  courts-martial 
may  consist  of  any  number  of  officers,  from  five  to  thirteen, 
inclusive;  but  they  shall  not  consist  of  less  than  thirteen, 
when  that  number  can  be  convened  without  manifest  in- 
jury to  the  service."  l    If  there  are  less  than  five  the 
court  is  without  a  quorum  and  cannot  proceed  with  the 
trial  of  any  case.     It  may,  however,  adjourn  until  the 
convening  officer  can  be  informed,  and  if  five  are  present 
and  one  of  them  is  challenged  the  remaining  four  may  act 
upon  the  challenge.     Article  75,  quoted  above,  is  merely 
directory  to  the  officer  appointing  the  court,  and  his  de- 
cision as  to  the  number  that  can  be  convened  without 
manifest  injury  to  the  service,  being  a  matter  left  to  his 
sound  discretion,  must  be  conclusive ; 2  provided  it  does 
not  fall  below  the  minimum  number  of  five. 

47.  The  word  "  officer,"  as  used  in  Sec.  1342,  Revised 
Statutes,  which  section  contains  the  Articles  of  War,  is 
understood  to   designate   " commissioned   officers"   only. 
This  is  held  to  include  officers  commissioned  by  the  Presi- 
dent during  the  recess  of  the  Senate,  though  their  nomina- 
tion may  not  yet  have  been  confirmed.    There  is  one  excep- 
tion made  to  this  meaning  of  the  word  " officer,"  by  its  use 
in  the  24th  Article  of  War,  giving  power  to  "all  officers,  of 

1  Article  75. 

2  Martin  v.  Mott,  12  Wheat.  (25  U.  S.)  19;  Swaim  v.  U.  S.,  165  U.  S. 
559. 

24 


COMPOSITION  OF  GENERAL  COURTS-MARTIAL         25 

what  condition  soever/'  to  "part  and  quell  all  quar- 
rels, frays  and  disorders"  which,  in  this  instance,  has 
been  held  to  include  non-commissioned  officers,  as  well 
as  those  commissioned.  But  whenever  a  junior  places 
a  senior  in  arrest,  under  such  circumstances,  he  must 
immediately  report  the  fact  to  the  commanding  officer. 

48.  Details  of  officers  as  members  of  general  courts- 
martial  have  heretofore  been  limited  to  officers  on  the 
active  list  of  the  Army,  or  on  duty  with  forces  in  active 
service,  but  by  an  enactment  of  April  23,  1904,  the  Secre- 
tary of  War  may,  with  their  consent,  assign  retired  officers 
of  the  Army  to  active  duty  in  recruiting,  for  service  with 
the  organized  militia  of  the  several  States  and  Terri- 
tories, as  military  attaches,  upon  courts-martial,  courts  of 
inquiry,  and  boards,  and  to  staff  duties  not  involving 
service  with  troops;  and  such  officers  while  so  assigned 
will  receive  full  pay  and  allowance  of  their  respective 
grades.1  Professors  of  the  U.  S.  Military  Academy,  having 
been  given  actual  rank  in  the  Army  by  Act  of  June  28, 
1902,  are  eligible  for  detail  as  members  of  courts-martial; 
but  the  character  of  their  duties  is  such  that  it  would  be 
inexpedient  to  so  detail  them. 

49.  It  is  provided  by  the  79th  Article  of  War  that  no 
officer,  when  it  can  be  avoided,  shall  be  tried  by  officers 
inferior  to  him  in  rank.  It  is,  however,  within  the  power 
of  the  convening  authority  to  determine  the  question  of 
rank,  as  well  as  the  number  of  members  within  the  pre- 
scribed limits,  and  his  action  is  conclusive.2  The  fact 
that  a  member  of  a  court  is  junior  in  rank  to  the  accused 
does  not,  of  itself,  constitute  a  ground  for  his  excuse  from 
serving  as  a  member  of  the  court  if  challenged;  it  must 
be  shown  that  the  junior  has  an  immediate  and  direct 

1  Act  April  23,  1904. 

2  Dig.  Op.  J.  A.  G.  210-211;  Mullan  v.  U.  S.,  23  Ct.  Cl.  34;  Id.,  140 
U.  S.  240,  245;  Swaim  v.  U.  S,,  165  U.  S.  599  560. 


26  MILITARY  LAW 

interest  in  the  result  of  the  trial,  such  as  that  the  convic- 
tion and  dismissal  of  the  accused  would  advance  him  to 
the  next  higher  grade. 

50.  Eligibility  of  Officers  in  Certain  Cases. — The 
general  laws  and  rules  given  above  as  to  the  composition 
of  courts-martial  apply  to  all  cases  arising  in  the  regular 
forces;  but  there  are  sometimes  in  the  service  of  the  United 
States  " other  forces/7  and  it  is  provided  by  the  77th 
Article  of  War  that  "  officers  of  the  Regular  Army  shall  not 
be  competent  to  sit  on  courts-martial  to  try  officers  and 
soldiers  of  other  forces  except  as  provided  in  Article  78." 
This  Article  (78)  provides  that  "  officers  of  the  Marine 
Corps,  detached  for  service  with  the  Army  by  order  of  the 
President,  may  be  associated  with  officers  of  the  Regular 
Army  on  courts-martial  for  the  trial  of  offenders  belonging 
to  the  Regular  Army,  or  to  forces  of  the  Marine  Corps  so 
detached."  This  constitutes  the  only  exception  to  the 
rule  contained  in  Article  77. 


FOR   TRIAL   OF   VOLUNTEERS   OR   MILITIA  l 

51.  Volunteers  and  Militia  are  "other  forces"  within  the 
meaning  of  the  77th  Article  of  War,  and  a  court  constituted 
with  one  or  more  regular  officers  as  members  thereof  for 
the  trial  of  a  volunteer  would  be  without  jurisdiction  and 
its  judgment  void.2 

This,  therefore,  excludes  officers  of  the  Regular  Army 
from  sitting  upon  courts-martial  for  the  trial  of  Volunteers 
or  Militia;  but  officers  of  either  Militia  or  Volunteers  are 
not  excluded  from  sitting  upon  courts  for  the  trial  of  of- 
ficers or  soldiers  of  the  Regular  Army;  and  militia  officers 
may  sit  upon  courts  for  trial  of  officers  or  soldiers  of  Regu- 

1  See  Articles  123  and  124,  Chapter  XXXI,  post,  par.  830,  831. 

2  Deming  v.  McClaughry,  113  Fed.  Rep.  639,  640;    McClaughry  v. 
Deming,  186  U.  S.  49. 


COMPOSITION  OF  GENERAL  COURTS-MARTIAL         27 

lars  or  Volunteers;  but  courts  for  the  trial  of  officers  or 
men  of  the  Militia  are,  by  law,  to  be  composed  of  militia 
officers  only.1 

1  Act  of  January  21,  1903. 

In  view  of  the  wording  of  the  Act  of  Congress,  approved  April  22, 
1898,  which  declares  that  the  Army  of  the  United  States  in  time  of 
war  shall  consist  of  both  the  Regular  Army  and  the  Volunteer  Army, 
it  was  at  one  time  held  ''that  such  Volunteer  Army  is  not  with  respect 
to  the  Regular  Army  other  forces  '  within  the  meaning  of  this  Article, 
and  that  therefore  officers  of  the  Regular  Army  are  competent  to  sit 
on  courts-martial  for  the  trial  of  officers  or  soldiers  of  such  Volunteer 
Army."  (Dig.  Op.  J.  A.  G.  209.)  But  the  matter  coming  before  the 
U.  S.  courts  by  writ  of  habeas  corpus,  it  was  held  by  the  U.  S.  Circuit 
Court  that  the  words  "other  forces  "  include  the  volunteer  forces,  and 
that  officers  of  the  Regular  Army  are  incompetent,  under  said  Article, 
to  try  officers  or  soldiers  of  the  volunteer  forces.  This  decision  was 
sustained  by  the  Supreme  Court  of  the  United  States  in  the  case  of 
McClaughry  v.  Deming.  186  U.  S.  49. 

The  Court  of  Claims  in  a  recent  case  (Brown's  Case)  has  held  that  a 
court-martial  was  without  jurisdiction,  because  the  president  of  the 
court,  although  he  held  a  volunteer  commission,  was  a  regular  officer. 
But  this  being  opposed  to  established  precedent,  a  motion  for  a  new 
trial  has  been  made  and  the  question  is  still  pending. 


CHAPTER  VI 
JURISDICTION  OF  COURTS-MARTIAL 

52.  General  Courts-martial. — The  jurisdiction  of  a 
court-martial  is  its  legal  power  to  try  and  determine 
cases  legally  referred  to  it  and,  in  case  of  a  finding  of 
guilty,  to  award  the  punishment  for  the  offense  within 
its  prescribed  limits. 

Being  courts  of  special  and  limited  jurisdiction  the'r 
organization,  powers  and  mode  of  procedure  must  con- 
form to  all  the  statutory  provisions  relating  thereto. 
Should  the  court  be  illegally  constituted  or  exceed  its 
jurisdiction  or  powers  by  failing  to  comply  with  the 
requirements  of  law,  its  acts  are  void  and  the  members 
of  the  court  may  be  held  liable  in  damages  by  the  aggrieved 
party.  If  in  its  proceedings  or  sentence  it  transcends 
the  limit  of  its  jurisdiction,  the  members  of  the  court 
and  the  officer  who  executes  the  sentence  are  trespassers, 
and  as  such  answerable  to  the  party  injured  in  damages 
in  the  civil  courts.1  But  when  acting  within  its  juris- 
diction errors  or  mistakes  made  are  not  subject  to  review 
collaterally,  or  to  be  redressed  by  habeas  corpus.2  It  is 
therefore  necessary  that  the  question  of  jurisdiction  be 
ascertained  before  trial  begins  or  sentence  is  given,  and 
this  is  determined  by  ascertaining  that  the  court  is  legally 

1  3  Greenleaf,  Sec.  470;    Ives,  p.  35;    Dynes  v.  Hoover,  20  How.  (61 
U.  S.)  65. 

2  Carter  v.  Roberts,  99  Fed.  Rep.  948;    Dynes  v.  Hoover,  20  How. 
(61  U.  S.)  65;    Carter  v.  McClaughry,  183  U.  S.  365;   McClaughry  v. 
Deming,  186  U.  S.  69. 

28 


JURISDICTION  OF  COURTS-MARTIAL.  29 

organized  by  competent  authority,  that  the  persons  brought 
before  it  for  trial  are  amenable  to  military  law,  and  that 
the  offenses  committed  are  within  its  jurisdiction.1 

53.  Territorial  Jurisdiction. — These  courts    being  in- 
stituted under  authority   of   military  law,    there  is   no 
territorial  limit  to  their  jurisdiction;   it  accompanies  the 
military  establishment  wherever  it  goes. 

54.  Jurisdiction   as  to   Persons   and  Offenses. — The 
jurisdiction    of    courts-martial    extends    to    all    persons 
belonging  to  the  military  establishment  at  all  times  and 
in  all  places  wherever  the  Army,  or  any  part  thereof, 
may  be  serving,  whether  within  or  without  the  limits  of 
the  United  States.2    It  extends  also  to  all  officers  and  sol- 
diers  of   "other   forces" — as   the  Marines   detached  for 
service  with  the  Army,  Volunteers  or  Militia  mustered 
into  the  service  of  the  United  States — and  "all  retainers 
to  the  camp,  and  all  persons  serving  with  the  armies  of 
the  United  States  in  the  field,  though  not  enlisted  soldiers" 
(Article  63),  and,  in  time  of  war,  to  persons  relieving  or 
knowingly  harboring  or  protecting  an  enemy  (Article  45) ; 
or  holding  correspondence  with  or  giving  intelligence  to 
the  enemy  (Article  46),  and  to  spies  (Sec.  1343,  Revised 
Statutes  United  States). 

The  jurisdiction  of  courts-martial  is  purely  criminal; 
they  cannot  take  cognizance  of  civil  matters,  and,  being 
statutory  courts,  the  crimes  of  which  they  do  take  cogni- 
zance must  be  covered  by  the  statutes  conferring  juris- 
diction upon  them,  and  unless  such  jurisdiction  is  given 
the  case  cannot  be  tried  by  such  court. 

When  the  offense  is  not  specifically  named  in  the  Articles 
of  War,  or  other  statutes,  the  question  as  to  whether 
particular  charges,  in  violation  of  the  61st  or  62d  Articles 
of  War,  amount  to  offenses  covered  by  those  articles 

1  See  Runkle  v.  U.  S.,  122  U.  S.  543,  545. 

2  See  Art.  63  and  Art.  64,  Chapter  XXXI,  post,  par.  770,  771. 


30  MILITARY  LAW 

is  a  matter  for  the  court-martial  to  determine  in  the 
proper  exercise  of  its  discretion  within  its  jurisdiction,  and 
its  decision  is  not  subject  to  review  by  the  civil  courts. 

55.  General  courts-martial   have  exclusive  jurisdiction 
over  officers  (Article  83);  cadets  (Sec.  1326,  Revised  Stat- 
utes); candidates  for  promotion  (Act  July  30,  1892)  j1  and 
capital  cases  (Article  83)  and,  in  time  of  war,  insurrection,  or 
rebellion,  offenses  named  in  the  58th  Article  of  War ;  and  con- 
current jurisdiction  with  the  inferior  courts  over  all  cases  of 
enlisted  men  (other  than  candidates  for  promotion),  general 
prisoners,  and,  in  time  of  war,  retainers  to  the  camp,  and 
persons,  though  not  enlisted  soldiers,  serving  with  the  Army 
in  the  field  (Article  63),  and  of  all  offenses  of  which  the  in- 
ferior courts  may  take  cognizance,  when  the  limit  of  punish- 
ment is  in  excess  of  the  punishing  power  of  such  courts.2 

56.  The  jurisdiction  of  courts-martial  is  not  exclusive, 
however,  as  to  acts  which,  in  addition  to  being  offenses 
against  military  law,  also  constitute  offenses  against  the 
civil  law,  of  which  civil  courts  may  take  cognizance.     In 
case   of   such   double   amenability   the   military   usually 
gives  precedence  to  the  civil  court,  but  if  its  jurisdiction 
is  first  fully  attached  and  an  officer  or  soldier  has  been 
duly  and  legally  arraigned  before  a   court-martial,   its 
jurisdiction  cannot  be  set  aside  by  the  process  of  a  State 

^  court.  But  an  acquittal  by  a  civil  tribunal  for  an  offense 
n^  against  the  civil  law  is  no  bar  to  trial  by  court-martial 
for  an  offense  against  military  law,  nor  is  a  trial  by  a 
military  court  a  bar  to  trial  by  the  civil  court.  A  person 
under  military  jurisdiction  acquitted  of  murder  by  a 
civil  tribunal  cannot  plead  that  acquittal  in  bar  of  trial 
by  court-martial  for  conduct  to  the  prejudice  of  good 
order,  etc.,  involved  in  the  same  act.3 

1  See  G.  O.  79,  H.  Q.  A.,  A.  G.  O.,  1903. 

2  Court-martial  Manual,  pp.  15,  16. 

3  In  re  Stubbs,  133  Fed.  Rep.  1012:  Court-martial  Manual,  p.  14; 
Dig.  Op.  J.  A.  G.  1036. 


JURISDICTION  OF  COURTS-MARTIAL.  31 

57.  The    jurisdiction   of    a    court-martial    cannot    be 
inferred;  its  authority  is  statutory  and  the  statute  under 
which  it   proceeds  must   be  followed   throughout.     The 
facts  necessary  to  show  its  jurisdiction  and  that  its  sentence 
was  conformable  to  law  must  be  stated  positively,  and  it 
is  not  enough  that  they  may  be  inferred  argumentatively.1 
Consent  cannot  confer  jurisdiction  upon  an  illegally  con- 
stituted court.2     In  order  to  give  effect  to  the  judgment 
of  a  court-martial  it  must  appear  affirmatively  that  the 
court  was  legally  constituted,   that  it  had  jurisdiction, 
and   that  all   the  statutory  requirements  governing  its 
proceedings  had  been  complied  with.3 

58.  Cadets  at  the  U.  S.  Military  Academy  are  a  part 
of  the  Army  of  the  United  States  and  are  subject  to  trial 
by  court-martial.4 

59.  The  trial  of  cadets  by  the  summary  court  would 
not  be  authorized;   such  courts  being  established  for  the 
trial  of  enlisted  men  only.     Cadets  occupy  a  status  of  their 
own  in  the  Army  not  identical  with  that  of  either  a  com- 
missioned officer  or  an  enlisted  man.    They  are  officers  of 
the  military  establishment  whose  appointments  are  evi- 
denced by  warrants  rather  than  by  formal  commissions. 

60.  In  Time  of  War,  Insurrection,  or  Rebellion,  the 
jurisdiction  of  general  courts-martial  extends  to  larceny, 
robbery,  burglary,  arson,  mayhem,  manslaughter,  murder, 
assault  and  battery  with  intent  to  kill,  wounding,  by  shoot- 
ing or  stabbing,  with  an  intent  to  commit  murder,  rape,  or 
an  assault  and  battery  with  intent  to  commit  rape,  when 
committed  by  persons  in  the  military  service  of  the  United 
States,  and  the  punishment  must  not  be  less  than  that 
provided,  for  the  like  offense,  by  the  laws  of  the  State, 

1  McClaughry  v.  Deming,  186  U.  S.  63. 

2  Id.  66. 

3  Runkle  v.  U.  S.,  122  U.  S.  543,  545;  McClaughry  v.  Deming,  186 

4  See  Sec.  1326,  Revised  Statutes;  Act  February  2,  1901. 


32  MILITARY  LAW 

Territory,   or  District  in  which    such  offense  may  have 
been  committed.1 

61.  The  jurisdiction  of  the  general  court-martial  also 
extends  at   all    times  to  minor  included  offenses  in  any 
charge  laid  before  it;    if  the  charge  is  murder  the  accused 
may  be  found  not  guilty  of  murder,  but  of  the  lesser  in- 
cluded offense  of  manslaughter;  or  in  a  charge  of  deser- 
tion the  finding  may  be  not  guilty  of  desertion,  but  guilty 
of  absence  without  leave. 

62.  The  judgment  of  a  court-martial  rendered  upon  sub- 
jects within  its  jurisdiction  is  as  legal  and  valid  as  those 
of  any  other  tribunal,  nor  is  such  judgment  subject  to  be 
appealed  from,  or  set  aside,  or  reviewed  by  the  courts  of 
any  State,  or  of  the  United  States,  by  writ  of  habeas  corpus 
or  otherwise.2 

63.  Jurisdiction  being  had,  members  of  military  tri- 
bunals are  not  liable  for  their  action  unless  it  can  be 
shown  that  they  acted  maliciously.     Such  tribunals  unite 
in  themselves  the  functions  of  the  judge  and  jury,  decid- 
ing questions  of  law,  when  necessary,  as  wrell  as  questions 
of  fact.     But  where  the  court  was  without  jurisdiction, 
this  question,  and  also  the  legality  of  the  sentence,  may  be 
determined  and  may  be  reached  by  a  writ  of  habeas  corpus, 
and  its  proceedings  set  aside  as  illegal  and  void.3    And 
where  a  prisoner  is  alleged  to  be  illegally  restrained  as  a 
consequence  of  the  action  of  such  a  court  he  may  be 
brought  before  a  Federal  civil  court  by  writ  of  habeas  corpus, 

1  Article  58;  see  post,  par.  765. 

2  Davis'  Military  Law,  p.  15;   Dig.  Op.  J.  A.  G.  992,  and  references; 
Deming  v.  McClaughry,  113  Fed.  Rep.  639;    McClaughry  v.  Deming, 
186  U.  S.  49;   Johnson  v.  Sayre,  158  U.  S.  118;    Dynes  v.  Hoover   20 
How.  (61  U.  S.)  65,  82;  Ex  parte  Reed,  100  U.  S.  13;  Ex  parte  Mason 
105  U.  S.  696;  Smith  v.  Whitney,  116  U.  S.  167,  177,  179;  In  re  Coy 
127  U.  S.  731;   U.  S.  v.  Pridgen,  153  U.  S.  49;   Carter  v.  McClaughry 
183  U.  S.  365. 

3  Carter  v.  Roberts,  99  Fed.  Rep.  948;  Id.,  177  U.  S.  496-7;  Deming 
v.  McClaughry,  113  Fed.  Rep.  639;  McClaughrj  v.  Deming,  186  U.  S. 
49. 


JURISDICTION  OF  COURTS-MARTIAL  33 

and  if  the  court-martial  was  without  jurisdiction  the 
prisoner  may  be  discharged.  The  writ  of  habeas  corpus 
cannot,  however,  be  made  to  serve  the  purpose  of  a  Writ 
of  error 1  the  function  of  which  is  to  review  and  correct  an 
error  of  law  committed  in  the  proceedings. 

64.  Jurisdiction  over  Persons  after  Expiration  of 
Service. — Under  ordinary  circumstances  separation  from 
the  military  service  ends  all  responsibility  for  offenses 
committed  against  military  law;  even  on  re-enlistment  the 
soldier  will  not  be  liable  for  an  offense  committed  during  a 
previous  enlistment;  the  discharge  cancels  all  previous 
military  obligations.  Separation  from  the  service  returns 
him  to  his  status  of  a  civilian;  but  he  still  remains  subject 
to  military  jurisdiction  in  the  following  cases: 

a.  The  60th  Article  of  War,  which  provides  that  "if  any  per- 
son, being  guilty  of  any  of  the  offenses  aforesaid  (fraudulent 
claims,  embezzlement,  etc.,  named  in  the  Article),  while  in  the 
military  service  of  the  United  States,  receives  his  discharge 
or  is  dismissed  from  the  service,  he  shall  continue  to  be  liable 
to  be  arrested  and  held  for  trial  and  sentence  by  a  court-mar- 
tial, in  the  same  manner  and  to  the  same  extent  as  if  he  had 
not  received  such  discharge  nor  been  dismissed." 

This  provision  of  law  is,  however,  subject  to  the  statute 
of  limitations,  103d  Article  of  War. 

b.  Under  Sec.  5  of  the  Act  of  June  18,  1898,  it  is  pro- 
vided "that  soldiers  sentenced   by  court-martial  to  dis- 
honorable discharge  and  confinement  shall,  until  discharged 
from  such  confinement,  remain  subject  to  the  Articles  of 
War  and  other  laws  relating  to  the  administration  of 
military   justice."     This    provision   is   intended   for    the 
control  and  government  of  general  prisoners,  men  who 
have  received  their  discharge  and  are  under  sentence  of 
confinement  in  a  military  prison  or  post  guard-house. 

1  In  re  Coy,  127  U.  S.  731;  McClaughry  v.  Deming,  186  U.  S.  69: 
Carter  v.  McClaughry,  183  U.  S.  365. 


34  MILITARY  LAW 

65.  In  cases  also  where  jurisdiction  has  been  taken  by 
arrest  or  confinement  of  an  officer  or  soldier  before  the 
expiration  of  his  term  of  service  or  separation  therefrom^ 
with  a  view  to  his  trial,  such  jurisdiction  will  attach  and 
continue,  even  though  the  term  of  service  for  which  he  has 
been  enlisted  expires  but  his  discharge  has  not  been  given 
him.     The  person  is  then  still  held  to  a  performance  of  his 
duty,  not  as  a  soldier  under  his  enlistment  contract,  but 
in  his  status  as  an  offender,  subject  to  the  jurisdiction  of 
the  court-martial.     The  fact  that  the  term  for  which  he 
enlisted  has  expired  will  not  oust  the  jurisdiction  of  the 
court,  but  trial  may  be  had  and  judgment  and  sentence 
be  awarded  and  executed. 

This  rule  also  applies  to  the  case  where  jurisdiction  has 
been  taken  over  a  minor  charged  with  desertion,  even 
though  he  enlisted  unlawfully  without  the  consent  of  his 
parent  or  guardian.1 

In  cases  of  desertion  in  time  of  peace  and  not  in  the 
face  of  the  enemy,  it  is  provided  by  the  103d  Article  of 
War  that  the  statute  of  limitation  shall  not  begin  to  run 
until  the  end  of  the  term  for  which  said  person  was  mus- 
tered into  the  service,  so  that  although  the  term  of  service 
for  which  he  was  enlisted  has  expired,  a  court-martial 
will  have  jurisdiction  for  trial  of  the  deserter  at  any  time 
within  two  years  thereafter. 

66.  Under  the  provisions  of  Sec.  1230,  Revised  Statutes, 
an  officer  who,  in  time  of  war,  has  been  dismissed  by 
order  of  the  President  is  entitled  to  a  trial  by  a  general 
court-martial  upon  application  in  writing  therefor,  and 
the  court-martial  will  have  jurisdiction  of  the  case. 

But  the  dropping  of  an  officer  for  desertion  after  three 
months'  absence  from  duty  without  leave,  under  Sec.  1229, 
Revised  Statutes,  separates  him  summarily  from  the  service 

1  In  re  Carver,  142  Fed.  Rep.  623. 


JURISDICTION  OF  COURTS-MARTIAL  35 

and  he  cannot  afterward  be  arrested  and  tried  by  court- 
martial.1  A  court-martial  has  no  jurisdiction  over  an 
officer  after  he  has  left  the  service,2  except  under  the 
60th  Article  of  War.  Nor  can  the  officer  dropped  for 
desertion  demand  trial  by  general  court-martial  under 
Sec.  1230,  Revised  Statutes.3 

67.  Conditions  Necessary  to  Show  Jurisdiction. — The 
jurisdiction  of  every  court-martial,  and  hence  the  validity 
of  each  of  its  judgments,  is  conditioned  upon  these  in- 
dispensable requisites : 

a.  That  it  was  convened  by  an  officer  empowered  by 
the  statutes  to  call  it. 

6.  That  the  officers  whom  he  commanded  to  sit  upon  it 
were  of  those  whom  he  was  authorized  by  the  Articles  of 
War  to  detail  for  that  purpose. 

c.  That  the  court  thus  constituted  was  invested  by  the 
Acts  of  Congress  with  power  to  try  the  person  and  the 
offense  charged. 

d.  That  the  statutory  rules  prescribed  for  the  exercise 
of  jurisdiction  have  been  complied  with. 

e.  That  the  sentence  was  in  accordance  with  the  law. 
The  absence  of  any  of  these  indispensable  conditions 

renders  the  judgment  and  sentence  of  a  court-martial 
cor  am  non  judice  (without  jurisdiction),  and  absolutely 
void,  because  such  a  judgment  and  sentence  is  rendered 
without  authority  of  law  and  without  jurisdiction.4 

68.  Contempts  of  Court. — Courts-martial  have  power 
given  them  to  preserve  order  in  the  court,  and  enforce 
respect,  by  statutory  provision  in  the  Articles  of  War, 
as  follows: 

Article  86. — A  court-martial  may  punish,  at  discretion, 
any  person  who  uses  any  menacing  words,  signs,  or  gestures 

1  Ives,  p.  48;  G.  C.  M.  O.  16  War  Department,  August  30,  1871. 

2  24  Op.  Attorney-General  570. 

8 17  Op.  Attorney-General  13;   Newton  v.  U.  S..  18  Ct.  Cl.  435. 
4  Deming  v.  McClaughry,  113  Fed.  Rep.  650. 


36  MILITARY  LAW 

in  its  presence,  or  who  disturbs  its  proceedings  by  any 
riot  or  disorder. 

Contempts  are  Either  Direct  or  Indirect. — Direct  con- 
tempt consists  in  noisy  or  disorderly  conduct  in  the  presence 
of  the  court  or  so  near  it  as  to  interrupt  its  proceedings, 
or  in  improper  language  tending  to  interfere  with  the 
proper  administration  of  justice.  The  86th  Article  of 
War  is  authority  for  the  punishment  of  direct  contempts 
and  refers  distinctly  to  "any  person."  This  embraces 
the  judge-advocate,  the  accused,  a  military  witness,  the 
prosecutor,  counsel,  clerk,  guard,  or  any  officer  or  soldier 
who  may  be  present  as  a  spectator.  The  rank  of  the 
person  is  immaterial.1  It  is  not  confined  in  its  terms  to 
military  persons  alone,  but  may  be  applied  to  civilians 
belonging  to  the  military  establishment  and  subject  to 
its  laws.2  Military  persons  guilty  of  contempt  may  be  pun- 
ished summarily,  or  be  placed  in  arrest,  and  have  charges 
preferred  against  them.3  Courts-martial  have  no  power 
apart  from  this  statute  to  punish  civilian  witnesses  for 
contempt,  and  therefore  could  not  punish  a  witness  for 
failure  to  obey  a  subpoena  (though  his  presence  might  be 
enforced  by  an  attachment),  nor  for  his  refusal  to  testify 
after  being  brought  before  the  court.  Provision  has, 
however,  been  made  by  recent  enactment  of  Congress  for 
punishment  in  such  cases  by  the  U.  S.  District  Court  4 
for  the  State,  Territory,  or  District  in  which  such  general 
court-martial  is  held. 

As  courts-martial  have  no  appointed  means  of  enforcing 
their  mandates,  they  cannot  exercise  the  power  of  punish- 
ment of  contempt  against  civilians,  though  they  might 

'  Winthrop  Voi   1   p  431 

'Authorities  differ  on  the  question  as  to  whether  the  words  ''any 
person,"  in  the  foregoing  article,  include  '  civilians  "  As  courts' 
martial  have  no  inherent  power  to  punish  for  contempt  it  is  believed 
that  these  words  should  be  construed  to  mean  'any  person  subject  io 
military  'jurisdiction,"  and  as  not  applying  to  others  not  subject  thereto 

*  Ives,  p  146;  Davis'  Military  Law,  p.  140. 

*  Act  March  2  1901. 


JURISDICTION  OF  COURTS-MARTIAL  37 

cause  the  arrest  of  such  persons  and  their  removal  from 
the  court-room,  and,  if  necessary,  from  the  military 
reservation  in  an  aggravated  case,  through  request  therefor 
to  the  commanding  officer  at  the  post  where  the  court 
is  sitting,  or  to  the  convening  authority.  The  command- 
ing officer  will  execute  the  request  of  the  court  with 
the  same  propriety  and  legality  as  he  executes  the  arrest 
of  the  accused  under  charges,  furnishes  the  court  with  a 
guard,  or  performs  any  other  ministerial  function  in  aid 
of  its  proceedings,1  and  will  act  under  the  same  authority 
as  he  would  in  the  removal  of  any  other  person  guilty 
of  disorderly  conduct  within  the  territorial  jurisdiction 
under  his  command.  If  the  contempt  of  a  civilian  amounts 
to  a  breach  of  the  peace,  the  court  may  take  steps  to  have 
him  brought  before  the  proper  civil  tribunal  therefor. 

The  contempts  rendered  punishable  by  this  Article  (86) 
are  of  a  public  and  self-evident  kind,  not  depending  upon 
any  interpretation  of  law  admitting  of  explanation,  or 
requiring  further  investigation.2 

69.  Members  of  the  Court  are  not  punishable  for  con- 
tempt, but  any  disorderly  conduct  should  be  reported  to 
the  convening  authority,  and  they  should  be  proceeded 
against  as  for  any  other  offense  against  good  order  and 
military  discipline.3 

70.  Method  of  Procedure  in  Cases  of  Direct  Con- 
tempt.— The   procedure  in   case   of   direct   contempt   of 
court  is  summary  in  character.     The  court  suspends  its 
proceedings  in  the  case  before  it  and  arraigns  the  person 
in  contempt,  giving  him  an  opportunity  to  explain;  if  it 
finds  his  explanation  insufficient  or  inadequate  it  at  once 
awards    the    punishment,    which    becomes    immediately 
effective,    not   needing   the   approval   of   the   convening 
authority  to  make  it  valid,  or  to  authorize  the  execution 

1  Winthrop's  Abr.,  3d  Ed.  p.  118;  see  Davis'  Military  Law,  p.  140. 
'Ives.p.  146. 
3  See  A.  R,  954. 


38  MILITARY  LAW 

of  its  sentence.  Instead  of  such  summary  proceeding 
the  court  may  cause  charges  to  be  drawn  under  the  62d 
Article  of  War  against  a  person  who  is  in  the  military 
service,  and  he  may  be  brought  to  trial  upon  that  charge 
before  another  court. 

Each  court  is  the  exclusive  judge  of  contempts  before  it. 

71.  Indirect  Contempt. — An  indirect  or  constructive 
contempt  is  one  offered  elsewhere  than  in  the  presence  of 
the  court,  and  which  tends  to  degrade  or  make  impotent 
the  authority  of  the  court  or  in  some  manner  to  impede  or 
embarrass  the  due  administration  of  justice.1 

72.  The  refusal  of  a  witness  to  obey  the  subpoena  and 
come  before  the  court-martial  is  an  indirect  contempt  of 
court.     In  such  cases  the  law,  Sec.  1202,  Revised  Statutes, 
United  States,  gives  the  judge-advocate  of  a  court-martial 
power  to  compel,  by  means  of  a  writ  of  attachment,  the 
attendance  of  witnesses  within  the  State,  Territory,  or 
District  in  which  the  court  is  sitting;  but,  until  the  Act 
of  March  2,  1901,  it  could  not  compel  a  witness  to  testify 
when  brought  before  it. 

It  is  now  provided,  however,  that  "every  person,  not 
belonging  to  the  Army  of  the  United  States,  who,  being 
duly  subpoenaed  to  appear  as  a  witness  before  a  general 
court-martial  of  the  Army,  wilfully  neglects  or  refuses  to 
appear,  or  refuses  to  qualify  as  a  witness  or  to  testify  or 
produce  documentary  evidence  which  such  person  may 
have  been  legally  subpoenaed  to  produce,  shall  be  deemed 
guilty  of  a  misdemeanor,  for  which  such  person  shall 
be  punished  on  information  in  the  district  court  of  the 
United  States,  and  it  shall  be  the  duty  of  the  U.  S.  district 
attorney,  on  the  certification  of  the  facts  to  him  by  the 
general  court-martial,  to  file  an  information  against  and 
prosecute  the  person  so  offending,  and  the  punishment 
of  such  person,  on  conviction,  shall  be  a  fine  of  not  more 
1  American  and  English  Encyclopaedia  of  Law,  Vol.  7,  p.  28. 


JURISDICTION  OF  COURTS-MARTIAL  39 

than  five  hundred  dollars  or  imprisonment  not  to  exceed 
six  months,  or  both,  at  the  discretion  of  the  court:  Pro- 
vided, That  this  shall  not  apply  to  persons  residing  beyond 
the  State,  Territory,  or  District  in  which  such  general 
court-martial  is  held,  and  that  the  fees  of  such  witness, 
and  his  mileage  at  the  rates  provided  for  witnesses  in 
the  U.  S.  district  court  for  said  State,  Territory,  or  Dis- 
trict, shall  be  duly  paid  or  tendered  said  witness."  1 

73.  The  proper  step  to  secure  this  punishment,  as  now 
provided  by  law,  is  for  the  court  to  make  a  certification 
that  the  person  (designating  him  by  name  and  place  of 
residence,  which  must  be  in  the  State,  Territory,  or  Dis- 
trict where  the  court  is  sitting),  after  having  been  duly 
subpoenaed  and  tendered  his  fees,  as  provided  by  law, 
has  wilfully  neglected  or  refused  to  appear,  or  refuses  to 
qualify  as  a  witness,  or  to  testify,  or  to  produce  docu- 
mentary evidence  which  he  has  been  called  upon  to  pro- 
duce. This  certification  should  be  authenticated  by  the 
signatures  of  the  president  and  judge-advocate  of  the 
court-martial  and  be  placed  in  the  hands  of  the  U.  S. 
district  attorney  for  the  district  in  which  such  court  is 
held,  whose  duty  it  will  be  under  the  law  to  file  an  infor- 
mation against  and  prosecute  the  person  so  offending. 

The  district  attorney  must  also  be  furnished  with  a 
complete  statement  of  the  case,  which  should  include 
a  copy  of  the  order  convening  the  court,  the  name  and 
rank  of  the  person  to  be  tried,  with  a  statement  of  the 
charges  against  him,  and  with  the  original  subpoena  to 
the  witness  with  evidence  of  service  thereof,  and  of  the 
fact  of  payment  or  tender  of  his  fees,  together  with  the 
names  of  necessary  witnesses  to  the  fact  of  the  refusal 
or  failure  of  the  witness  to  comply  with  the  requirements 
of  the  law,  and  the  judge-advocate's  certificate  that  he 
is  a  necessary  and  material  witness  in  the  case. 
1  Act  of  March  2,  1901. 


CHAPTER  VII 
JURISDICTION:     INFERIOR  COURTS-MARTIAL 

74.  The  Garrison  Court-martial :  Organization,  Juris- 
diction, etc. — This  is  a  court  for  the  trial  of  minor  offenses; 
it  can  neither  try  capital  cases  nor  commissioned  officers. 
It  derives  its  authority  from  the  82d  Article  of  War  which 
provides    that    "  every   officer   commanding    a    garrison, 
fort  or  other  place,  where  the  troops  consist  of  different 
corps,  shall ...  be  competent  to  appoint,  for  such  gar- 
rison or  other  place,  courts-martial,  consisting  of  three 
officers,  to  try  offenses  not  capital." 

This  article  limits  the  jurisdiction  of  the  court  and  pre- 
scribes the  exact  number  of  its  members.  This  court 
is  also  provided  with  a  judge-advocate  appointed  by  the 
convening  authority  under  the  general  provision  therefor 
contained  in  the  74th  Article  of  War. 

It  has  been  held  sufficient  to  fulfil  the  requirement  as 
to  "different  corps"  if  there  be  on  duty  a  single  officer 
or  enlisted  man  of  another  arm  of  the  service  than  that 
of  which  the  main  body  is  composed.1 

75.  The  jurisdiction  of  this  court  extends  to  all  cases 
not  capital,  however  grave  the  offense;    but  as  punish- 
ment by  it  is  limited  by  the  83d  Article  of  War,  not  to 
exceed  confinement  at  hard  labor  for  three  months  or 
forfeiture  of  three  months'  pay,  or  both,  and,  in  addi- 
tion thereto,  in  the  case  of  non-commissioned  officers, 
reduction  to  the  ranks,  and  in  case  of  first-class  privates 

1  Court-martial  Manual,  p.  79;  Dig.  Op.  J.  A,  G.  217. 

40 


JURISDICTION:  INFERIOR  COURTS-MARTIAL  41 

reduction  to  second-class  privates,  all  offenses  requiring 
more  severe  punishment  should  be  referred  to  a  general 
court-martial.  This  reference  is  to  be  decided,  how- 
ever, by  the  officer  to  whom  the  charges  are  sent  and 
who  has  the  legal  power  and  authority  to  convene  the 
court  in  the  first  instance.  The  record  of  a  garrison 
court-martial  is  similar  in  form  to  that  of  a  general  court, 
but  testimony  taken  before  a  garrison  or  a  regimental 
court-martial  will  not  be  reduced  to  writing.1 

76.  The  garrison  court-martial  cannot  try  capital 
cases  nor  commissioned  officers,  cadets,  or  candidates 
for  promotion;  but  it  has  jurisdiction  over  all  other 
enlisted  men,  general  prisoners,  and,  in  time  of  war, 
over  the  persons  described  in  the  63d  Article  of  War. 

A  garrison  court-martial  may  be  convened  under  the 
following  circumstances : 

a.  Where  the  accused,  not  being  an  enlisted  man  or  a 
general  prisoner,  is  not  subject  to  the  jurisdiction  of  a 
summary  court,  although  he  is  subject  to  the  jurisdiction 
of  other  inferior  courts-martial,  such  as  "  retainers  to 
the  camp,"  and  persons  serving  with  the  armies  of  the 
United  States  in  the  field.2 

6.  In  case  the  accused  before  trial  refuses  to  consent 
in  writing  to  trial  by  summary  court,  the  case  being 
one  which  a  summary  court  cannot,  under  these  circum- 
stances, adequately  punish. 

c.  When  the  accused,  being  a  non-commissioned  officer, 
objects  to  trial  by  summary  court. 

Whenever  under  the  summary  court  act  or  the  83d 
Article  of  War  it  becomes  necessary  to  convene  a  gar- 
rison or  regimental  court,  the  order  appointing  it  will 
state  the  facts  which  bring  the  case  to  be  tried  within 
the  exceptions  of  those  laws.3 

1  A.  R.  987. 

2  See  Article  63,  Chapter  XXXI,  post,  par.  770. 

3  Court-martial  Manual,  p.  80,  A.  R.  968. 


42  MILITARY  LAW 

77.  The   Regimental    Court  -  martial.  —  Regimental 
courts-martial  have  the  same  organization,  authority,  juris- 
diction and  powers  of  punishment,  and  are  subject  to  the 
same  restrictions  as  are  prescribed  for  garrison  courts- 
martial,    except   that   regimental   courts   must   be   com- 
posed wholly  of  officers  of  the  regiment  or  corps  to  which 
the  accused  belongs.     They  are  convened  by  the  com- 
mander of  the  regiment  or  corps,1  and  the  word  " corps" 
includes  the  Corps  of  Engineers,  the  Ordnance  and  the 
Signal  Corps.2 

78.  The  functions  of  both  the  garrison  and  regimental 
courts-martial  have  been  largely  transferred  to  the  sum- 
mary court.    These  courts  are  now  only  organized,  as  a  rule, 
for  the  trial  of  non-commissioned  officers  who  object  to  trial 
by  the  summary  court,  or  in  cases  of  other  enlisted  men 
where  the  accused  shall,  before  trial,  refuse  to  consent  in 
writing  to  trial  by  the  summary  court;  in  which  case  the 
law  provides  that  trial  may  be  had  either  by  general, 
regimental    or    garrison    court-martial.     A    non-commis-j 
sioned  officer  can  object  to  trial  by  any  inferior  court,  but  i 
may  waive  the  objection  and  be  tried  by  either  of  them,  or,  », 
notwithstanding  his  objection,  he  may  be  brought  before 
either  of  them  by  the  authority  of  the  officer  competent 
to  order  his  trial  by  a  general  court-martial.3    A  private 
soldier  who  refuses  before  trial  to  consent  in  writing  to 
trial  by  summary  court  may  be  brought  before  a  general, 
regimental,  or  garrison  court-martial,  or  before  the  sum- 
mary court  with  a  limitation  of  its  power  of  punishment 
to  one  month's  pay  and  one  month's  confinement.4 

79.  The  Summary  Court. — The  summary  court  has,  by 
recent   enactment,    entirely   displaced   the   field   officer's 
court,  and  largely  supplanted  the  garrison  and  regimental 

1  Article  81,  Chapter  XXXI,  post,  par.  788. 

2  Dig.  Op.  J.  A.  G.  212;  Court-martial  Manual,  p.  81. 
8  A.  R.  966. 

4  Article  83,  post,  par.  790. 


JURISDICTION:  INFERIOR  COURTS-MARTIAL  43 

courts-martial  in  their  functions.  The  summary  court 
was  first  established  by  Act  of  Congress  of  October  4,  1890, 
which  has  since  been  modified  by  Act  of  June  18,  1898. 
Its  object  is  to  secure  the  speedy  trial  and  disposal  of 
cases  of  enlisted  men  properly  triable  by  the  inferior  courts. 
As  originally  enacted  it  was  in  force  only  in  time  of  peace 
and  corresponded  to  the  field  officer's  court,  which  was 
authorized  by  law  "in  time  of  war"  only.  The  field 
officer's  court  was  authorized  by  the  then  existing  Article 
80  of  the  Articles  of  War,  which  provided  that  "in  time 
of  war  a  field  officer  may  be  detailed  in  every  regiment, 
to  try  soldiers  thereof  for  offenses  not  capital;  and  no 
soldier,  serving  with  his  regiment,  shall  be  tried  by  a  regi- 
mental or  garrison  court-martial  when  a  field  officer  of  his 
own  regiment  may  be  so  detailed."  The  summary  court 
therefore  ceased  operation  in  time  of  war  until  the  Act 
approved  June  18,  1898,  remedied  the  defect  and  re- 
pealed Articles  80  and  110,  which  Articles  authorized  and 
provided  for  the  field  officer's  court. 

80.  This  summary  court  act  provides  that  "the  com- 
manding officer  of  each  garrison,  fort,  or  other  place,  regi- 
ment or  corps,  detached  battalion,  or  company,  or  other 
detachment  in  the  Army,  shall  have  power  to  appoint  for 
such  place  or  command,  or  in  his  discretion  for  each  bat- 
talion thereof,  a  summary  court  to  consist  of  one  officer 
to  be  designated  by  him,  before  whom  enlisted  men  who 
are  to  be  tried  for  offenses,  such  as  were  prior  to  the  pas- 
sage of  the  Act  'to  promote  the  administration  of  justice 
in  the  Army,'  approved  October  1,  1890,  cognizable  by 
garrison  or  regimental  courts-martial,  and  offenses  cogniza- 
ble by  field  officers  detailed  to  try  offenders  under  the  pro- 
visions of  the  80th  and  110th  Articles  of  War,  shall  be 
brought  to  trial  within  twenty-four  hours  of  the  time  of  the 
arrest,  or  as  soon  thereafter  as  practicable,  except  when  the 
accused  is  to  be  tried  by  general  court-martial;  but  such 


44  MILITARY  LAW 

summary  court  may  be  appointed  and  the  officer  desig- 
nated by  superior  authority  when  by  him  deemed  desirable; 
and  the  officer  holding  the  summary  court  shall  have  power 
to  administer  oaths  and  to  hear  and  determine  such  cases, 
and  when  satisfied  of  the  guilt  of  the  accused,  adjudge  the 
punishment  to  be  inflicted,  which  said  punishment  shall 
not  exceed  confinement  at  hard  labor  for  one  month  and 
forfeiture  of  one  month's  pay,  and,  in  the  case  of  a  non- 
commissioned officer,  reduction  to  the  ranks  in  addition 
thereto;  that  there  shall  be  a  summary  court  record  kept 
at  each  military  post  and  in  the  field  at  the  headquarters 
of  the  proper  command,  in  which  shall  be  entered  a  record 
of  all  cases  heard  and  determined  and  the  action  had 
thereon;  and  no  sentence  adjudged  by  said  summary 
court  shall  be  executed  until  it  shall  have  been  approved 
by  the  officer  appointing  the  court,  or  by  the  officer  com- 
manding for  the  time  being :  Provided,  That  when  but  one 
commissioned  officer  is  present  with  the  command  he  shall 
hear  and  finally  determine  such  cases:  And  provided 
farther,  That  no  one  while  holding  the  privileges  of  a 
certificate  of  eligibility  to  promotion  shall  be  brought  be- 
fore a  summary  court,  and  that  non-commissioned  officers 
shall  not,  if  they  object  thereto,  be  brought  to  trial  before 
summary  courts  without  the  authority  of  the  officer  com- 
petent to  order  their  trial  by  general  court-martial,  but 
shall  in  such  cases  be  brought  to  trial  before  gar- 
rison, regimental,  or  general  courts-martial,  as  the  case 
may  be."  1 

This  Act  repeals  Articles  80  and  110  of  the  Articles  of 
War,  relating  to  field  officer's  court,  and  provides  "that  the 
commanding  officers  authorized  to  approve  the  sentences 
of  summary  courts  and  superior  authority  shall  have 
power  to  remit  or  mitigate  the  same." 

1  Act  June  18,  1898. 


JURISDICTION:   INFERIOR  COURTS-MARTIAL  45 

81.  The  limit  of  punishment  as  contained  in  the  fore- 
going Act  was  extended  by  Act  approved  March  2,  1901, 
which  amends  the  83d  Article  of  War  to  read  as  follows : 

Article  83. — Regimental  and  garrison  courts-martial  and 
summary  courts  detailed  under  existing  laws  to  try  en- 
listed men  shall  not  have  power  to  try  capital  cases  or 
commissioned  officers,  but  shall  have  power  to  award  pun- 
ishment not  to  exceed  confinement  at  hard  labor  for  three 
months  or  forfeiture  of  three  months'  pay,  or  both,  and 
in  addition  thereto,  in  the  case  of  non-commissioned 
officers  reduction  to  the  ranks,  and  in  the  case  of  first- 
class  privates  reduction  to  second-class  privates:  Pro- 
vided, That  a  summary  court  shall  not  adjudge  confine- 
ment and  forfeiture  in  excess  of  a  period  of  one  month, 
unless  the  accused  shall  before  trial  consent  in  writing  to 
trial  by  said  court,  but  in  any  case  of  refusal  to  so  consent, 
the  trial  may  be  had  either  by  general,  regimental  or  garrir 
son  court-martial,  or  by  said  summary  court,  but  in  case 
of  trial  by  said  summary  court  without  consent  as  afore- 
said, the  court  shall  not  adjudge  confinement  or  forfeiture 
of  pay  for  more  than  one  month. 

82.  It  will  be  seen  by  the  foregoing  laws  that  the  sum- 
mary court  now  has  jurisdiction  over  enlisted  men,1  includ- 
ing general  prisoners,  in  time  of  war  as  well  as  peace;  that 
its  power  extends  to  the  trial  of  enlisted  men  only,  others 
not  being  subject  to  its  jurisdiction;   that  in  cases  of  con- 
sent in  writing  to  trial  by  such  court  its  power  of  punish- 
ment has  been  largely  extended,  and  that  it  has  also  been 
given  power  to  reduce  first-class  privates  to  second-class 
privates. 

An  officer  who  shall  constitute  the  summary  court  is 
to  be  designated  by  the  commanding  officer,  but  he  may 
be  designated  by  superior  authority  when  by  him  deemed 
desirable,  and  he  is  not  subject  to  challenge. 

1  Act  June  18,  1898. 


46  MILITARY  LAW 

A  commanding  officer  cannot  appoint  himself  a  sum- 
mary court  if  other  officers  are  present  with  the  command.1 

The  summary  court  officer  is  not  sworn  in  the  cases  on 
trial  before  him,  but  acts  under  his  oath  of  office.  He 
administers  the  oaths  to  witnesses,  makes  the  necessary 
certificate  as  to  the  fact  of  attendance  in  case  of  a  civilian 
witness,  and  administers  the  oath  respecting  his  expense 
account;2  but  is  not  empowered  to  issue  writs  of  attach- 
ment to  compel  the  attendance  of  civilian  witnesses. 

The  procedure  of  the  summary  court  should  be  similar 
to  that  of  the  older  courts-martial.  The  charges  and 
specifications  should  be  read  to  the  accused,  and  he  be 
required  to  plead,  and  the  witnesses  should  be  sworn. 
But  the  testimony  is  not  set  forth  in  the  record.3 

83.  Whenever  the  only  officer  present  with  a  command 
sits  as  summary  court,  no  approval  of  the  sentence  is 
required  by  law,  but  he  should  sign  the  sentence  as  such 
officer  and  date  his  signature.4 

84.  The  statement  of  the  accused  as  to  whether  or  not 
he  consents  to  trial  by  the  summary  court  should  be  made 
and  signed  by  him  on  the  original  charges,  and  a  note  of 
this  statement  in  each  case  will  also  be  entered  on  the 
record  of  the  summary  court  and  on  the  monthly  report 
of  trials  of  such  court.5 

85.  Delay  beyond  twenty-four  hours  does  not  invalidate 
the  proceedings,  but  may  be  considered  in  awarding  the 
sentence.     The  commanding  officer  determines  what  cases 
shall  come  before  the  court  and  when  they  shall  come  before 
it.     Trials  by  this  court  are  not  to  be  held  on  Sunday 
except  when  the  exigencies  of  the  service  render  it  neces- 
sary.6 

1  Circular  32,  War  Department,  1905. 

2  Dig.  Op.  J.  A.  G.  2406. 

3  Id.  2398.     See  Appendix  E,  5. 

4  A.  R.  965. 
6  A.  R.  962. 
6  A.  R.  967. 


JURISDICTION:  INFERIOR  COURTS-MARTIAL  47 

86.  Whenever,  under  the  summary  court  act  or  the  83d 
Article  of  War,  it  becomes  necessary  to  convene  a  garrison 
or  regimental  court,  the  order  appointing  it  will  state  the 
facts  which  bring  the  cases  to  be  tried  within  the  exceptions 
of  those  laws.1 

THE    REGIMENTAL    COURT-MARTIAL    FOR    DOING    JUSTICE 

87.  The  regimental  court-martial  for  doing  justice  is 
a  different  tribunal  from  the  regimental  court  for  the 
trial  of  offenders  and  is  provided  for  by  Article  30  of 
the  Articles  of  War,  which  is  as  follows : 

Article  30. — Any  soldier  who  thinks  himself  wronged 
by  any  officer  may  complain  to  the  commanding  officer 
of  his  regiment,  who  shall  summon  a  regimental  court- 
martial  for  the  doing  of  justice  to  the  complainant. 
Either  party  may  appeal  from  such  regimental  court-martial 
to  a  general  court-martial;  but  if,  upon  such  second 
hearing,  the  appeal  appears  to  be  groundless  and  vexa- 
tious, the  party  appealing  shall  be  punished  at  the  discre- 
tion of  said  general  court-martial. 

The  composition  and  organization  of  this  court  is  the 
same  as  that  of  the  regimental  court-martial,  and  its 
proceedings  are  recorded  as  nearly  as  practicable  in  the 
same  manner  as  the  proceedings  of  general  courts-martial, 
but  its  powers  are  not  the  same,  its  purpose  not  being  for 
the  trial  of  cases,  but  only  to  hear  complaint  and  recom- 
mend the  action  to  be  taken  to  remedy  the  wrongs  com- 
plained of,  or  to  redress  the  grievance  if  it  is  found  to 
exist,  such  as  erroneous  stoppages  of  pay,  irregularity  of 
detail,  etc. 

The  members  of  the  court  are  subject  to  challenge  by 
the  parties,2  and  the  members  and  the  judge-advocate 
are  sworn  to  faithful  performance  of  their  duties.  Both 

1  A.  R.  968. 

3  Winthrop,  Vol.  1,  p.  862;  Ives,  p.  138. 


48  MILITARY  LAW 

parties  furnish  a  list  of  their  witnesses  to  the  judge-advo- 
cate, appear  before  the  court,  and  may  be  sworn  them- 
selves or  submit  proper  documentary  evidence,  and 
examine  and  cross-examine  witnesses. 

88.  Being  purely  a  regimental  court  it  can  only  act  upon 
matters  affecting  enlisted  men  and  officers  of  the  regiment. 
The  regimental  commander  only  is  competent  to  convene 
such  court,  and  it  cannot  properly  take  cognizance  of 
matters  beyond  the  power  of  the  regimental  commander 
to  redress.     While  its  purpose  is  that  of  investigation,) 
and  not  of  trial,  it  cannot  usurp  the  functions  of  a  court ; 
of  inquiry;  if  the  remedy  proposed  by  the  court  is  beyond/; 
the  power  of  the  regimental  commander,  he  cannot  enforce/ 
it  and  must  submit  the  case  to  the  proper  authority  foi] 
remedial  action.1 

The  evidence  being  received,  the  court's  conclusions  of 
fact  must  appear  in  the  record,  together  with  the  recom- 
mendation of  action  to  be  taken,  and  must  be  approved 
by  the  regimental  commander  before  becoming  effective; 
when  approved  he  issues  the  order  for  carrying  the  recom- 
mendation of  the  court  into  effect. 

89.  Either  party  may  appeal,  and  the  appellant  must 
apply  through  the  proper  military  channels  to  the  depart- 
ment commander  or  other  authority  competent  to  order 
a  general  court-martial.     Before  such  court  the  investi-, 
gation  is  pursued  as  if  on  a  first  hearing,  but  by  consent 
of  both  parties  the  record  of  testimony  received  by  thel 
regimental  court  may  be  admitted.      If  the  appeal  is 
found  to  be  groundless  and  vexatious,  the  action  taken 
is  summary  in  character;  the  charge  is  formulated  by  the 
court,  and  the  appellant  is  given  opportunity  to  show 
cause  why  sentence  should  not   be  passed  upon  him. 
The  proceedings,  finding  and  sentence  are  submitted  to 
the  reviewing  authority  as  in  other  cases  of  general  court- 

1  Davis'  Military  Law,  pp.  226,  227. 


JURISDICTION:  INFERIOR  COURTS-MARTIAL  49 

martial,  and  are  acted  upon  and  carried  into  effect  in  the 
usual  manner.1 

These  courts  are  seldom  resorted  to,  all  wrongs  and 
grievances  being  usually  acted  upon,  and  remedies  ordered 
at  once,  by  the  commander,  when  appeal  is  made  to  him 
through  the  proper  military  channels. 

1  Davis'  Military  Law,  p.  228. 


CHAPTER  VIII 

ARREST  AND  CONFINEMENT 

90.  Arrest. — Arrest  is  any  seizure  by  power,  physical 
or  moral.  It  may  be  made  by  seizing  or  touching  the 
body;  but  it  is  sufficient  if  the  party  be  within  the  power 
of  the  officer  and  submit  to  arrest. 

In  civil  life  it  is  usually  effected  through  means  of  a 
criminal  process  called  a  warrant,  issued  by  proper  judicial 
authority,  though  arrest  may  be  made  without  a  war- 
rant by  an  officer,  and  even  by  a  private  citizen  when 
the  peace  has  been  broken  in  his  presence  or  a  felony 
has  actually  been  committed  and  he  has  reasonable  ground 
to  believe  that  the  person  he  arrests  is  the  perpetrator. 
No  warrant  is  required  for  the  arrest  of  soldiers  by  mili- 
tary authority.1 

The  person  arrested  in  civil  life  is  held  in  bodily  restraint 
in  charge  of  an  officer  or,  in  bailable  cases,  allowed  to  go 
free  under  bail  to  appear  at  the  time  and  place  appointed 
for  his  trial.  If  he  fails  to  appear  his  bail  is  forfeited,  but 
that  does  not  free  him  from  subsequent  arrest  and  trial 
when  he  can  be  found.  In  military  arrest  bail  is  not 
taken,  but  where  an  officer  is  arrested  but  not  confined 
under  guard,  the  penalty  of  dismissal  for  breach  of  arrest 
is  a  sufficient  equivalent,  as  is  the  severe  punishment 
awarded  to  an  enlisted  man  for  that  offense. 

In  preserving  peace  within  a  fort,  an  officer  is  authorized 

1  Hutchings  v.  Van  Bokkelen  (1852),  34  Me.  126;  Fed.  Stat.  Anno- 
tated, Vol.  1,  p.  496. 

50 


ARREST  AND  CONFINEMENT  51 

to  employ  all  reasonable  means,  but  the  means  used  should 
be  measured  by  the  necessity  of  the  case.  The  law  will 
not  justify  the  killing  of  a  single  unarmed  soldier,  though 
drunken,  riotous,  or  even  mutinous,  when  he  could  be 
arrested  without  resort  to  such  extreme  means.1 

An  order,  however,  given  by  a  military  officer  to  a 
private  under  his  command  should  be  obeyed  by  the 
private,  and  will  be  his  full  protection  in  a  criminal  prose- 
cution, unless  the  illegality  of  such  order  is  so  clearly 
shown  on  its  face  that  a  man  of  ordinary  sense  and  under- 
standing would  know  when  he  heard  it  read,  or  given, 
that  the  order  was  illegal.2 

91.  The  period  for  which  an  officer  or  soldier  put  in 
arrest  may  be  confined  is  limited  by  the  70th  Article  of 
War  to   "  eight   days,   or   until  such  time  as  a   court- 
martial    can   be   convened,"    and    Article    71    provides: 
"When  an  officer  is  put  in  arrest  for  the  purpose  of  trial, 
except  at  remote  military  posts  or  stations,  the  officer 
by  whose  order  he  is  arrested  shall  see  that  a  copy  of 
the  charges  on  which  he  is  to  be  tried  is  served  upon  him 
within  eight  days  after  his  arrest,  and  that  he  is  brought 
to  trial  within  ten  days  thereafter,  unless  the  necessities 
of  the  service  prevent  such  trial;    and  then  he  shall  be\ 
brought  to  trial  within  thirty  days  after  the  expiration! 
of  said  ten  days.     If  a  copy  of  the  charges  be  not  served,  ' 
or  the  arrested  officer  be  not  brought  to  trial,  as  herein 
required,    the  arrest   shall   cease.     But   officers   released 
from  arrest,  under  the  provisions  of  this  article,  may  be 
tried,  whenever  the  exigencies  of  the  service  shall  per- 
mit, within  twelve  months  after  such  release  from  arrest." 

92.  Arrest  of  Officers. — In  the  military  service  officers 
are  placed  in  arrest  by  order  of  the  proper   superior, 
either  written  or  verbal,  given  in  person  or  through  his 

1  U.  S.  v.  Carr  (1872),  1  Wood  U.  S.  480. 

2  In  re  Fair,  100  Fed.  Rep.  149. 


52  MILITARY  LAW 

representative,  usually  the  adjutant.  No  forcible  meas- 
ures are  taken  to  arrest,  or  to  keep  under  restraint  by 
force,  except  in  extreme  cases  where  escape  is  feared, 
and  then  it  is  usual  to  place  a  sentinel  over  the  accused. 
An  arrest  may  be  ordered  by  the  commanding  officer  in 
person  or  through  a  staff  officer,  orally  or  in  writing.1 

93.  The  65 th  Article  of  War  directs   that   "  officers 
charged  with   crime  shall  be  arrested  and  confined  in 
their  barracks,  quarters  or  tents,  and  deprived  of  their 
swords  by  the  commanding  officer.     And  any  officer  who 
leaves  his  confinement  before  he  is  set  at  liberty  by  his 
commanding  officer  shall  be  dismissed  from  the  service." 

The  word  " crime"  is  employed  in  this  article  in  a 
general  sense,  and  refers  to  all  offenses  of  military  as  well  as 
of  civil  character  which  are  cognizable  by  a  court-martial.2 

The  "  commanding  officer  intended  in  this  article  is  the 
commander  of  the  regiment,  separate  company,  post, 
department,  etc.,  in  which  the  officer  is  serving.  Where 
a  company  is  included  in  a  post  command,  the  com- 
mander of  the  post,  rather  than  the  company  commander, 
is  the  proper  officer  to  make  the  arrest  of  a  subaltern 
of  the  company."3 

The  offense  must  be  a  serious  one;  officers  are  not  to 
be  placed  in  arrest  for  light  offenses.  A  medical  officer 
charged  with  the  commission  of  an  offense  need  not  be 
placed  in  arrest  until  the  court-martial  for  his  trial  con- 
venes if  the  service  would  be  inconvenienced  thereby, 
unless  the  charge  is  of  a  flagrant  character.4  The  omis- 
sion of  the  arrest  does  not  in  any  way  affect  the  juris- 
diction of  the  court-martial.5 

94.  An  exception  to  the  rule  that  commanding  officers 

1  A.  R.  929. 

2  Dig.  Op.  J.  A.  G.  170. 

3  Dig.  Op.  J.  A.  G.  503. 

4  A.  R.  931,  932. 

8  Dig.  Op.  J.  A.  G.  502. 


ARREST  AND  CONFINEMENT  53 

only  have  power  to  place  officers  in  arrest  is  found  in 
the  24th  Article  of  War,  which  gives  to  "all  officers,  of 
what  condition  soever/'  power  "to  part  and  quell  all 
quarrels,  frays  and  disorders,  whether  among  persons 
belonging  to  his  own  or  to  another  corps,  regiment, 
troop,  battery  or  company,  and  to  order  officers  into 
arrest  and  non-commissioned  officers  and  soldiers  into 
confinement,  who  take  part  in  the  same,  until  their  proper 
superior  officer  is  acquainted  therewith." 

The  word  "officers"  coupled  with  the  words  "of  what 
condition  soever,"  in  this  Article,  is  held  to  include  all 
classes  of  officers,  non-commissioned  as  well  as  com- 
missioned, being  an  exception  to  the  meaning  of  the 
term  "officer"  contained  in  the  first  paragraph  of  Sec. 
1342,  Revised  Statutes,  enacting  the  Articles  of  War. 
In  all  cases,  however,  when  a  junior  acts,  he  should  at 
once  report  to  the  commanding  officer  a  statement  of 
the  facts,  making  him  "acquainted  therewith."1 

95.  The  arrest  and  detention  of  a  retired  officer,  by  the  mil- 
itary authorities,  under  charge  of  violation  of  the  Articles  of 
War  are  authorized  by  the  65th  Article  of  War ;  and  the  civil 
courts  will  not  interfere  to  procure  his  discharge  on  habeas 
corpus  proceedings.     And  this  is  so,  though  the  officer  is 
arrested  in  his  own  house  and  is  taken  therefrom  and  held  in 
close  confinement  in  a  military  barracks,  before  specific 
charges  as  to  the  military  offense  committed  by  him  have 
been  formulated  and  served  on  him.2 

96.  Status  of  an  Officer  in  Arrest. — An  officer  arrested 
will  repair  at  once  to  his  tent  or  quarters,  and  there  re- 
main until  more  extended  limits  have  been  granted  by 
the  commanding  officer.      Close  confinement  will  not  be 
enforced  except  in  cases  of  a  serious  nature.3 

1  Davis'  Military  Law,  pp.  393,  394. 

2  Closson  v.  U.  S.,  7  App.  Cases  (D.  C.)  460;   Fed.  Stat.  Annotated, 
Vol.  7,  p.  1032. 

8  A.  R.  930. 


54  MILITARY  LAW 

97.  The  order  of  arrest  given  an  officer  includes  con- 
finement in  his  barracks,  quarters  or  tent,  with  deprivation 
of  the  right  to  wear  his  sword,  and  "any  officer  who  leaves 
his  confinement  before  he  is  set  at  liberty  by  his  com- 
manding officer  shall  be  dismissed  the  service."  1 

98.  Officers  in  arrest  are  ordinarily  considered  as  on 
parole,  but  when  accused  of  having  broken  their  arrest,  or 
of  any  heinous  offense,  the  penalty  of  which  might  induce 
a  desire  to  escape  from  justice,  they  have,  when  under 
close  arrest,  been  placed  in  the  custody  of  the  provost- 
marshal  or  in  charge  of  a  sentry. 

An  officer  in  arrest  will  not  wear  his  sword  nor  visit 
officially  his  commanding  officer  or  other  superior  officer, 
unless  directed  to  do  so.  His  applications  and  requests  of 
every  nature  will  be  made  in  writing.2  On  the  march, 
field  officers  and  non-commissioned  staff  officers  in  arrest 
will  follow  in  rear  of  their  respective  regiments,  and  com- 
pany officers  and  non-commissioned  officers  in  arrest  in 
rear  of  their  respective  companies,  unless  otherwise  specially 
directed.3 

99.  The  actual  taking  of  his  sword  from  a  commissioned 
officer  as  provided  in  the  article  of  war  is  not  an  essential 
part  of  his  arrest;  the  fact  that  it  was  not  taken  does  not 
invalidate  the  arrest  or  empower  him  to  wear  his  sword 
while  in  arrest,  the  effect  of  the  status  of  arrest  being  to 
suspend  him  from  the  functions  of  his  office  and  to  deprive 
him  of  the  exercise  of  command.4 

100.  An  officer  by  being  placed  in  charge  of  a  provost- 
marshal,  or  by  having  a  guard  placed  over  his  quarters, 
is  not  thereby  relieved  from  the  responsibility  of  arrest.5 

101.  The  officer  in  arrest  is  on  honor  to  keep  within 

1  65th  Article  of  War,  post,  par.  772. 

2  A.  R.  933. 

3  A.  R.  934. 

4  Winthrop's  Abr.,  3d  Ed.,  p.  47. 

8  Simmons  on  Courts-martial,  Sec.  355. 


ARREST  AND  CONFINEMENT  55 

the  limits  of  his  arrest  and  to  await  the  issue  of  his  trial.1 

1 02.  The  penalty  of  dismissal  is  sufficient  to  enforce 
the  observance  of  the  arrest  and  is  an  equivalent  to  the 
bail  in  civil  causes,  the  penalty  being  in  most  cases  greater 
than  the  forfeiture  of  bail  in  large  amount.     When  the 
arrest  continues  for  any  time  the  limits  are  usually  extended 
by  the  commanding  officer  who  designates  such  extension 
in  the  order  granting  it;   until  extended  the  officer  is  in 
close  arrest  and  confined  to  his  quarters  strictly. 

103.  The  penalty  of  the  65th  Article  of  War  has  been 
held  to  apply  to  " close  arrest"  only,  and   not  to  cases 
where  the  limit  has  been  extended.     As,  however,  the 
extension  is  given  for  the  benefit  of  the  officer,  a  strict|\ 
construction  would  hold  him  to  the  same  accountability 
as  in  close  arrest ;  but  as  restrictive  laws  are  given  a  liberal 
construction  it   has  been  held  by  the  Judge-Advocate- 
General  that  breach  of  an  arrest  not   accompanied  by 
confinement  to  quarters  is  not  an  offense  under  the  65th 
Article  of  War,  but  under  the  62d. 

An  unintentional  or  inadvertent  violation  of  the  arrest, 
in  either  case,  constitutes  a  constructive  breach  of  arrest, 
but  does  not  involve  the  odium  of,  or  constitute  the 
offense  attached  to,  a  voluntary  breach  thereof.  The 
fact  should,  however,  be  immediately  reported  to  the 
commanding  officer,  stating  the  circumstances  of  the 
case,  thereby  satisfying  him  that  it  was  not  intentional. 
Failure  to  do  this  may  lay  the  officer  open  to  suspicion 
of  intent  to  commit  the  breach  and  an  endeavor  to 
conceal  it. 

104.  Arrest  of  Enlisted  Men. — Non-commissioned  of- 
ficers,  except  in  aggravated   cases   or   where  escape  is 
feared,  and  soldiers  who  have  committed  minor  offenses, 
subject  to  trial  by  summary  court,  are  placed  in  arrest 

1  Davis'  Military  Law,  p.  63;  Tytler,  Essay  on  Military  Law,  pp. 
202,  203. 


56  MILITARY  LAW 

in  their  barracks  or  quarters.  Private  soldiers  under 
more  serious  charges  are  confined  to  the  post  guard-house. 
Except  as  provided  in  the  24th  Article  of  War,  or  when 
restraint  is  necessary,  no  soldier  will  be  confined  without 
the  order  of  an  officer,  who  shall  previously  inquire  into 
his  offense.1  And  an  officer  authorizing  such  arrest  or 
confinement  must  report  the  fact  as  soon  as  practicable 
to  the  prisoner's  company  or  detachment  commander.2 

105.  No  provost-marshal  or  officer  commanding  a  guard 
can  refuse  to  receive  or  keep  a  prisoner  committed  to  his 
charge  by  an  officer  belonging  to  the  forces  of  the  United 
States;   provided  the  officer  committing  him,  at  the  time 
thereof,  delivers  an  account  in  writing,  signed  by  himself, 
of  the  crime  charged  against  the  prisoner.3    And  every 
officer  to  whose  charge  a  prisoner  is  committed  must, 
within  twenty-four  hours  after  such  commitment  or  as 
soon  as  he  is  relieved  from  his  guard,  report  in  writing  to 
the  commanding  officer  the  name  of  such  person,  the  crime 
with  which  he  is  charged,  and  the  name  of  the  officer 
committing  him.4    If  there  be  any  prisoner  with  no  record 
of  charges  against  him,  the  old  officer  of  the  day  must 
report  that  fact  to  the  commanding  officer  for  his  instruc- 
tions.5   The  facts  required  to  be  reported  by  Article  68, 
and  as  to  there  being  no  record  of  charges,  appear  in  the 
guard  report  book,  presented  to  the  commanding  officer 
by  the  old  officer  of  the  day  when  he  reports  to  be  relieved 
by  the  new  officer  of  the  day,  immediately  after  guard- 
mounting. 

1 06.  The  period  for  which  officers  and  soldiers  under 
arrest  may  be  kept  in  confinement  is  limited  to  eight  days, 
"  or  until  such  time  as  a  court-martial  can  be  assembled."  6 

1A.  R.  937. 

2  A.  R.  938. 

3  Article  67;  see  Chapter  XXXI,  post,  par.  774. 

4  Article  68;  see  Chapter  XXXI,  post,  par.  775. 
6  A.  R.  941. 

8  Article  70;  see  Chapter  XXXI,  post,  par.  777. 


CHAPTER  IX 

ARREST   OF   PERSONS   IN   MILITARY   SERVICE   BY 
CIVIL   AUTHORITIES 

107.  Persons  in  the  military  establishment  may,  in  time 
of  peace,  be  arrested  for  a  capital  crime,  or  any  offense 
against  the  person  or  property  of  a  citizen,  and  be  tried 
therefor  by  the  civil  courts.  To  secure  this  arrest  Con- 
gress has  enacted  the  59th  Article  of  War. 

Article  59. — When  any  officer  or  soldier  is  accused  of  a 
capital  crime,  or  of  any  offense  against  the  person  or  prop- 
erty of  any  citizen  of  any  of  the  United  States,  which  is  pun- 
ishable by  the  laws  of  the  land,  the  commanding  officer, 
and  the  officers  of  the  regiment,  'troop,  battery,  company, 
or  detachment  to  which  the  person  so  accused  belongs  are 
required,  except  in  time  of  war,  upon  application  duly 
made  by  or  in  behalf  of  trie  party  injured,  to  use  their 
utmost  endeavors  to  deliver  him  over  to  the  civil  magis- 
trate, and  to  aid  the  officers  of  justice  in  apprehending  and 
securing  him,  in  order  to  bring  him  to  trial.  If,  upon  such 
application,  any  officer  refuses  or  wilfully  neglects,  except 
in  time  of  war,  to  deliver  over  such  accused  person  to  the 
civil  magistrates,  or  to  aid  the  officers  of  justice  in  appre- 
hending him,  he  shall  be  dismissed  from  the  service. 

The  term  "laws  of  the  land"  in  this  article  has  been  con- 
strued to  include  " municipal  ordinances  and  by-laws;" 
and  a  soldier  may  be  arrested  and  tried  by  civil  authority 
for  violation  of  a  city  ordinance.1  This  article  leaves  no 

1  Cir.  15,  Headquarters  of  the  Army,  A.  G.  O.,  1894. 

57 


58  MILITARY  LAW 

discretion  to  the  commanding  officer;  upon  the  applica- 
tion being  made,  he  must  use  his  utmost  endeavors  to  aid 
the  civil  officers  in  apprehending  and  securing  the  accused 
in  order  to  bring  him  to  trial.  The  application  required 
by  this  Article  should  be  made  in  case  of  a  crime  committed 
before  enlistment,  as  well  as  after  it.1 

1 08.  The  commanding  officer,  before  surrendering  the 
party,  should  require  the  application  to  be  sufficiently 
specific  to  identify  the  accused  and  to  show  that  he  is  the 
person  charged  with  a  crime  or  offense  within  the  class 
described  in  the  Article.     Without  compliance  with  such 
requirement  the  officer  cannot  surrender  nor  the  civil  au- 
thorities arrest,  within  a  military  command,  an  accused 
officer  or  soldier. 

If  the  commanding  officer  is  doubtful  whether  the 
application  is  made  in  good  faith  and  in  the  interest  of  law 
and  justice,  he  will  require  it  to  be  explicit  and  be  swesai 
sworn  to ;  and,  in  general,  the  preferable  and  only  satisfac- 
tory course  will  be  to  require  the  production,  if  practicable, 
of  a  due  and  formal  warrant  or  writ  for  the  arrest  of  the 
party.2 

109.  Soldiers  not  within  the  immediate  control  or  juris- 
diction of  the  military  authorities,  as  an  officer  on  leave  or 
an  enlisted  man  on  furlough,  may  be  arrested  in  the  same 
manner  as  any  citizen. 

no.  The  Article  does  not  apply  to  civilians  employed  or 
residing  at  a  military  post  accused  of  civil  crime,  and 
application  cannot  be  required  to  be  made  to  the  com- 
manding officer  before  arresting  the  party;  but  it  should 
be  made  or  notice  given  him  as  a  matter  of  comity.3  Nor 
does  the  Article  apply  to  offenses  against  the  laws  of  the 
United  States,  or  to  those  committed  in  places  over  which 

1  Dig.  Op.  J.  A.  G.  95. 

2  id. 

3  Dig.  Op.  J.  A.  G.  103. 


ARREST  BY  CIVIL  AUTHORITIES  59 

the  United  States  has  exclusive  jurisdiction.  It  applies 
only  to  officers  or  soldiers  accused  of  an  offense.  It  does 
not  apply  to  the  service  of  a  subpoena  to  appear  as  a 
witness  before  a  civil  court.  In  such  case  the  civil  official 
should,  as  a  matter  of  comity,  first  apply  to  the  command- 
ing officer,  and  where  the  application  for  such  service  is  so 
made  the  commanding  officer  will,  as  a  matter  of  comity 
in  return,  facilitate  the  service  and  issue  the  necessary 
permit  or  order  to  enable  and  cause  the  officer  or  soldier  to 
attend  the  court.1 

in.  When  a  soldier  is  serving  a  sentence  of  confinement 
imposed  by  a  court-martial,  he  cannot,  in  general,  properly 
be  surrendered  under  this  Article.  The  civil  authorities 
should  defer  their  application  till  the  military  punishment 
is  executed  or  remitted.2 

112.  In  cases  where  the  act  committed  constitutes  an 
offense  against  both  military  and  civil  law,  that  authority 
which  first  assumes  jurisdiction  of  the  case  retains  it  until 
completed.     If  the  accused  has  been  arrested  and  is  under 
charges  for  trial  by  the  courts  of  either  jurisdiction,  the 
authorities  of  the  other  should  await  the  result  of  the 
operations  and  judgment.     But  whatever  that  may  be,  if 
the  case  is  adjudicated  and  the  sentence  completed,  he 
may  then  be  called  to  account  for  the  offense  against  the 
laws  of  the  other  jurisdiction,  and  his  former  trial  is  no. 
bar  to  trial  by  its  courts. 

113.  Service    of   Process    on   Military    Reservations 
over  which  Jurisdiction  has  not  been  Ceded. — Where 
a  military  post  is  within  the  territorial  boundaries  of  a 
State,  and  there  has  been  no  cession  of  jurisdiction  by  the 
State,  the  State  officials  have  the  same  right  and  author- 
ity to  serve  process  there,  and  its  courts  have  the  same 
jurisdiction  over  acts  done  and  crimes  committed  within 

1  Dig.  Op.  J.  A.  G.  104. 

2  Dig.  Op.  J.  A.  G.  98. 


60  MILITARY  LAW 

the  limits  of  the  post,  as  elsewhere  in  the  State;  the 
ownership  or  occupation  by  the  United  States  not  except- 
ing it  from  the  operation  of  State  laws.1  Likewise,  where  a 
military  post  is  located  in  a  Territory,  the  territorial  courts 
are  authorized  to  issue  process  for  the  arrest  of  officers  and 
soldiers  charged  with  crime,  or  to  serve  process  in  civil 
actions  and  to  attach,  replevy  upon,  or  take  in  execution 
property  belonging  to  them  within  the  post,  not  specially 
exempted  from  seizure,  and  commanding  officers  of  such 
posts  should  interpose  no  obstacle  to  due  service,  within 
their  commands,  of  the  legal  process  of  the  territorial 
courts,  these  courts  not  existing  under  a  sovereignty  dis- 
tinct from  that  of  the  United  States,  but  being  estab- 
lished under  the  provision  of  the  Constitution  empowering 
Congress  "to  make  all  needful  rules  and  regulations  re- 
specting the  territory  belonging  to  the  United  States."  2 

114.  Service  of  Process  on  Reservation  where  Juris- 
diction has  been  Ceded  by  the  State. — As  a  general  rule, 
military  posts  situated  within  the  limits  of  a  State  are 
occupied  under  a  grant  with  cession  of  jurisdiction  given 
by  the  State.     In  most  cases  the  State  reserves  the  right 
to  serve  process  within  the  ceded  territory  in  both  criminal 
and  civil  cases  arising  outside  the  same. 

115.  Crimes  committed  within  the  ceded  territory  are 
cognizable  by  the  United  States  authorities  only;  3  but 
persons,  whether  soldiers  or  citizens,  who  commit  crimes 
outside  that  territory  and  have  violated  the  State  laws 
cannot  take  refuge  upon  the  United  States  reservation 
and  be  exempt  from  arrest.     In  fact  the  commanding 
officer  should,   when  requested,   assist  in  the  arrest  of 
such  criminals. 

1  Davis'  Military  Law,  p.  460;   Ft.  Leavenworth  R.  R.  Co.  v.  Lowe, 
114  U.  S.  525,  527,  533. 

2  Davis'  Military  Law,  p.  461. 

3  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  532,  533;    In  re 
Ladd,  74  Fed.  Rep.  41. 


ARREST  BY  CIVIL  AUTHORITIES  61 

1 1 6.  All  military  persons  are  amenable  to  suit  in  the 
civil  courts  in  cases  arising  out  of  their  personal  rela- 
tions and  responsibilities  to  civilians,  or  for  damages  arising 
from  any  excess  of  authority  to  the  detriment  of  another, 
or  for  illegal  or  excessive  punishment  imposed  or  an  un- 
authorized arrest  or  confinement.1 

1  Winthrop's  Abr.,  pp.  340,  341. 


CHAPTER  X 
CHARGES  AND  SPECIFICATIONS 

117.  The  charge  designates  in  general  terms  the  offense 
committed,  while  the  specifications  state  the  specific  acts 
which  constitute  the  offense  designated  in  the  charge. 
They  ought  to  be  drawn  up  with  all  the  essential  pre- 
cision, certainty  and  distinctness  which  the  prisoner  is 
entitled  to  demand  in  an  indictment  at  common  law; 
though  they  need  not  be  drawn  in  the  same  technical 
forms.1 

Each  charge  must  be  sustained  by  one  or  more  speci- 
fications, each  of  which  must  allege  facts  which  sustain 
the  charge,  and  which  brings  the  offense  within  the  juris- 
diction of  a  court-martial.  It  is  not  necessary  that  the 
charge  and  specification  should  be  drawn  up  with  all  the 
formality  and  use  of  technical  terms  of  a  civil  indict- 
ment, but  it  is  sufficient  that  they  show  the  offense  com- 
mitted with  the  time,  place  and  circumstances  which 
will  bring  it  within  the  jurisdiction  of  the  court-martial, 
and  they  must  be  so  fully  and  clearly  stated  that  the 
accused  can  ascertain  therefrom  the  offenses  with  which 
he  is  charged  and  from  what  accusation  he  must  defend 
himself.  The  offense  charged  must  be  laid  under  the 
proper  article  of  war  and  the  facts  constituting  it  be 
clearly  stated,  and  the  name  of  the  accused,  his  rank, 

1  3  Greenleaf,  Ev.,  Sec.  471. 


CHARGES  AND  SPECIFICATIONS.  63 

and  the  organization  to  which  he  belongs,  together  with 
the  place  and  date  of  the  commission  of  the  offense,  must 
be  given.  If  the  exact  time  and  place  cannot  be  specified, 
it  will  be  sufficient  to  state  it  as  committed  "at  or  near" 
a  certain  place  specified,  and  "on  or  about"  a  certain 
date  specified.  Whenever  an  act  charged  against  an 
officer  under  a  specific  article  of  war  likewise  constitutes 
conduct  unbecoming  an  officer  and  a  gentleman,  it  may 
also  be  charged  under  the  61st  Article  of  War.1 

118.  An  error  in  the  name,  rank,  etc.,  as  drawn  in  the 
charge,  may  be  corrected  before  arraignment.     If,  how- 
ever, the  accused  pleads  under  a  wrong  name  or  title, 
he  may,  if  found  guilty,  be  punished,  for  he  cannot  take 
advantage  of  his  own  wrong. 

119.  When  an  article  of  war  includes  more  than  one 
offense  a  charge  laid  under  that  article  should  state  in 
its  specification  the  particular  offense  committed,  and  not 
be  drawn  in  the  alternative  form.     The  use  of  the  alter- 
native form  is  not  permissible,  as  the  accused  is  entitled 
to  know  the  specific   offense  with  which  he  is  charged 
and  cannot  be  required  to  defend  himself  as  against  a 
charge   of  either   having  committed  one  offense  or  else 
the  other;    the  officer  preferring  the  charges  must  state 
the  explicit  offense  charged.     It  would  be  improper,  for 
example  in  a  charge  under  the  17th  Article  of  War,  to 
state  in  the  specification  that  the  accused  did  "lose  or 
sell"  his  arms,  clothing,  etc.2 

1 20.  Military  usage  and  procedure  permit  of  an  indefi- 
nite number  of  offenses  being  charged  and  adjudicated  in 
one  proceeding.     The  accused  may  be  arraigned  upon 
several  charges  at  one  trial,  and  an  approved  finding  of 
guilty  on  one  of  them,  a  conviction  of  which  requires  or 
authorizes  the  sentence  adjudged,  will  give  validity  and 

1  See  Carter  v.  McClaughry,  183  U.  S.  365. 

2  See  post,  Chapter  XXXI,  par.  724. 


64  MILITARY  LAW 

effect  to  such  sentence,  although  the  similar  findings  on 
all  the  other  charges  are  disapproved.1 

121.  Intent. — Whenever  " intent"  is  a  necessary  ele- 
ment of  a  crime,  that  intent  must  be  set  forth  in  the 
specification;    for  example,  in  a  charge  of  larceny  the 
specification  should  show  not  only  the  "taking  and  carry- 
ing away"  but  the  intent  to  convert  to  his  own  use. 
When  it  is  an  essential  ingredient  of  an  offense,  the  alle- 
gation of  intent  may  be  made  by  the  use  of  the  words 
"wilfully";    "knowingly";    "feloniously";    "corruptly," 
etc.,  in  the  specifications.     The  words  "knowingly"  and 
"wilfully"  occur  in  certain  articles  of  war,  and  the  word 
"feloniously"  is  properly  used  to  describe  an  intent  when 
the  act  constitutes  an  offense  punishable  by  imprisonment 
in  a  State  prison  or  penitentiary.     Some  Articles  of  War, 
as  the  13th,  20th,  and  39th,  contain  no  reference  to  intent.2 

122.  Who  may  Prefer  Charges. — Any  army  officer  may 
prefer    charges    against    another    officer    whatever    their 
relative  rank,  or  against  any  non-commissioned  officer, 
soldier  or  other  person   amenable   to  military  law.     An 
officer  may  prefer  charges  even  though  himself,  at  the  time, 
under  charges.     But  a  person  may  be  tried  for  preferring 
false   charges.3    Charges   should   be   signed   by   a   com- 
missioned officer,  but  a  contract  surgeon  or  dental  surgeon 
may  sign  charges  against  an  enlisted  man.4 

123.  Who   may  Initiate   Charges.— Charges    may  be 
initiated  by  soldiers   through  complaint  made  to  their, 
proper  superior,  or  by  persons  not  in  the  military  service 
through  statements  supported  by  satisfactory  evidence 
furnished  to  an  officer  who  may  sign  such  charges  and 
thereupon  assume  the  responsibility  therefor.     In  sup- 

1  Dig.  Op.  J.  A.  G.  2311;   Carter  v.  McClaughry,  105  Fed.  Rep.  614; 
Id.,  183,  U.  S.  386. 

2  Davis'  Military  Law,  p.  70  and  note. 

3  Ives,  p.  84. 

4  Court-martial  Manual,  p.  20;  A.  R.  1421, 


CHARGES  AND  SPECIFICATIONS  65 

port  of  accusations  of  facts  not  within  his  own  knowledge, 
the  officer  should  investigate  the  truth  thereof,  and  require 
affidavits  or  other  satisfactory  evidence  to  be  furnished 
him  sufficient  to  satisfy  himself  that  the  charges  can  be 
proved  before  the  court-martial. 

124.  To  Whom  Sent. — Charges  should  be  sent  through 
proper  military  channels  to  the  officer  authorized  by  law 
to    convene   a    court-martial   for   the   trial   thereof.     In 
general  court-martial  cases  it  is  required  that  the  com- 
manding officer  of  the  post,  or  some  officer  designated 
by  him,  other  than  the  officer  preferring  the  charges,  shall 
investigate   them   before   they   are   forwarded,   and  the 
commanding  officer  must  state  in  his  endorsement  thereon 
in  forwarding  them  the  name  of  the  investigating  officer, 
and  also  whether  or  not,  in  his  opinion,  the  charges  can 
be  sustained.1 

125.  Accumulative   Charges. — The  accumulation   of 
charges  by  holding  back  trial  of  certain  offenses  until 
several  have  been  committed  and  then  bringing  them  all 
before  a  court-martial  is  irregular  and  not  favored,  having 
the  appearance  of  a  desire  to  punish  rather  than  to  main- 
tain discipline. 

126.  Alteration  of  Charges. — Charges  submitted  against 
any  person  may  be  altered  and  corrected  by  the  convening 
authority  before  forwarding  them  to  the  judge-advocate 
of  a  court-martial  for  trial.     The  judge-advocate  cannot 
alter  or  change  the  charges  sent  him  in  any  material 
matter,  otherwise  they  would  not  be  the  charges  referred 
which  he  was  authorized  to  bring  to  trial  before  the  court; 
neither  he  nor  the  court-martial  can  originate  and  try 
charges  not  referred  to  them  for  trial  by  the  convening 
officer;    nor  can  charges  referred  to  them  be  withdrawn 
and  new  ones  submitted  by  direction  of  the  court;    nor 
can  the  court  direct  any  amendment  that  will  materially 

1  A.  R.  962. 


66  MILITARY  LAW 

modify  the  charges;  they  must  be  brought  to  trial  as 
they  stand,  and,  after  arraignment,  the  accused  can  only 
be  tried  upon  the  charges  to  which  he  has  been  called 
upon  to  plead. 

The  judge-advocate  may,  however,  correct  a  manifest 
minor  error,  in  name,  date,  or  number,  etc.,  butr  he  must 
not  make  any  material,  substantial  amendment  without 
the  authority  of  the  convening  officer. 

127.  Additional  Charges. — After  the  original  charges 
have  been  preferred  and  trial  ordered  thereon,  new  charges 
for  offenses  additional  to  those  already  charged  may  be 
drawn  and  referred  for  trial  by  the  same  court-martial  and 
at  the  same  time  as  the  original  charges.     They  must, 
however,  be  received  and  the  accused  arraigned  upon  them 
at  the  same  time  as  on  the  original  charges,  in  order  to  be 
included  in  the  same  trial  with  them.     If  they  are  not,  a 
separate  trial  on  them  will  be  necessary,  since  the  court 
can  try  only  those  charges  which  are  before  them  at  the 
time  of  taking  the  oath  which  requires  that  they  "try 
and  determine  the  matter  now  before  them." 

128.  Service  of  Charges. — When  an  officer  is  placed  in 
arrest  for  purpose  of  trial,   except  at  remote  military 
posts  or  stations,  a  copy  of  the  charges  on  which  he  is 
to  be  tried  must  be  served  upon  him  within  eight  days 
after  the  arrest,  or  the  arrest  will  cease.1    This  service 
consists  in  delivering  to  the  accused  personally  a  copy 
of    the    charges    and    specifications    against    him.     The 
delivery  may  be  made  by  the  adjutant,  the  judge-advocate 
of  a  court  appointed  for  the  trial  of  the  case,  or  by  any 
officer  directed  by  proper  authority  to  make  it. 

129.  Enlisted  men  should  be  informed  of  the  charges 
and  specifications  against  them,  and  it  is  the  duty  of  the 
judge-advocate  to   furnish   the  accused  with  a  copy  of 
the  charges  on  which  he  is  to  be  tried,  within  reasonable 

1  Art  71.     See  Chapter  XXXI,  post.  par.  778. 


CHARGES  AND  SPECIFICATIONS  67 

time  previous  to  trial,  to  enable  him  to  prepare  his  defense 
and  summon  his  witnesses.  Any  person  indicted  for  a 
capital  offense  in  a  United  States  court  has  a  right  to  have 
the  list  of  witnesses  delivered  to  him  at  least  two  entire 
days  before  the  trial,  and,  in  case  of  treason,  three  days 
before  it.1 

The  accused  is  entitled  to  be  informed  of  the  nature 
and  cause  of  the  accusation  against  him  by  a  particular 
statement  of  all  that  is  material  to  constitute  the  offense 
set  forth  with  reasonable  certainty  as  to  time  and  place, 
and  in  the  customary  forms  of  law. 

If  the  charges  are  materially  changed  or  additional 
charges  are  drawn,  it  is  the  right  of  the  accused  to  have 
copies  thereof,  with  reasonable  time  to  meet  them. 

PAPERS   THAT   SHOULD   ACCOMPANY   CHARGES 

130.  General  Courts. — Charges  against  enlisted  men 
forwarded  to  the  authority  competent  to  order  trial  by 
general  court-martial  must  be  accompanied  by  a  statement 
of  service  of  the  accused,  showing  dates  of  present  and 
former  enlistments,  his  character,  as  given  on  each  dis- 
charge, and  the  date  of  confinement  for  the  offense  alleged 
in  the  charge;  proper  evidence  of  previous  convictions 
must  also  accompany  the  charges,2  and,  in  case  of  desertion, 
a  report  of  the  physical  examination  made  by  the  medical 
officer  at  the  post  where  the  deserter  is  received.3 

The  statement  of  service  will  not  be  introduced  in 
evidence,  and  is  not  made  part  of  the  record,  but  will  be 
considered  by  the  court  and  shown  to  the  accused,  with 
a  view  to  correction  by  the  introduction  of  evidence 
should  it  be  required.  It  will  be  returned  by  the  judge- 
advocate  with  the  charges,  which  it  accompanies,  and 

1  Sec.  1033,  Revised  Statutes;  Logan  v.  U.  S.,  144  U.  S.  263. 

2  A.  R.  961. 

3  A.  R.  124. 


68  MILITARY  LAW 

will  be  forwarded  with  the  record  for  file  in  the  office  of 
the  Judge- Advocate-General.  The  evidence  of  previous 
convictions  is  appended  to  the  record,  each  with  its  proper 
mark,  as  referred  to  in  the  body  thereof. 

131.  Inferior  Courts. — Charges  against  an  enlisted  man 
for  trial  by  garrison,  regimental,  or  summary  court  must 
be  accompanied  by  proper  evidence  of  previous  convic- 
tions, but,  in  the  summary  court  alone,  if  the  evidence  of 
such  convictions  is  contained  in  its  record,  a  reference  to 
it  will  be  sufficient,  and  if  this  evidence  is  not  submitted 
or  cited  the  court  may  take  judicial  notice  of  any  such 
evidence  which  that  record  contains.1 

1  A.  R.  963. 


CHAPTER  XI 
ORGANIZATION  OF  COURTS-MARTIAL 

132.  Charges  having  been  received  and  approved  by  an 
officer  authorized  to  convene  a  court-martial,  such  court 
is  convened  by  his  order.     This  order  is  dated  at  his  head- 
quarters, and  designates  the  names  of  the  officers  who  will 
constitute  the  court-martial,  and  the  judge-advocate,  to- 
gether with  the  time  and  place  at  which  the  court  will 
meet.     The  charges  and  specifications,  with  the  accom- 
panying papers,  are  then  sent  to  the  judge-advocate,  who 
must  make  the  necessary  preparations  for  the  meeting  of 
the  court  and  trial.     The  number  of  members  and  their 
eligibility  for  detail  is  regulated  by  the  75th  Article  of  War- 

Article  75. — General  courts-martial  may  consist  of  any 
number  of  officers  from  five  to  thriteen,  inclusive;  but 
they  shall  not  consist  of  less  than  thirteen,  when  that 
number  can  be  convened  without  manifest  injury  to  the 
service.1 

133.  Since  the  word  " officer"  as  used  in  the  Articles  of 
War  designates  commissioned  officers,2  such  officers  only 
can  sit  upon  courts-martial.3 

Commissioned  officers  are  those  who  have  been  duly  ap- 
pointed and  commissioned  by  the  President  and  have 
received  their  commissions.  When  they  have  been  ap- 
pointed by  the  President  and  confirmed  by  the  Senate 

1  See  par.  46,  supra. 

2  Sec.  1342,  Revised  Statutes  U.  S. 
1  See  par.  47,  supra. 


70  MILITARY  LAW 

and  have  received  their  commissions  it  is  a  permanent 
appointment.  The  appointments  and  commissions  given 
by  the  President  during  the  recess  of  the  Senate  are  also 
constitutional  appointments,  but  temporary,  as  they  ex- 
pire, if  not  confirmed  by  the  Senate,  at  the  end  of  its  next 
session.  Meanwhile  they  are  as  regular  and  legal  and 
effective  as  permanent  appointments,  conferring  the  same 
rights  for  the  time  being  and  among  them  eligibility  to 
sit  as  members  of  a  court-martial. 

134.  Militia  Officers. — Under  the  law  militia  officers 
only  may  sit  upon  courts-martial  for  the  trial  of  officers 
and  enlisted  men  of  the  Militia. 

Volunteers. — Both  militia  and  volunteer  officers  may  be 
members  of  a  court-martial  for  the  trial  of  volunteers. 

Regulars. — Militia,  volunteer,  and  regular  officers,  and 
Officers  of  the  Marine  Corps  detached  for  service  with 
the  Army,  may  sit  upon  courts-martial  for  the  trial  of 
officers  and  enlisted  men  of  the  regular  forces.1 

Regular  officers  are  prohibited  from  sitting  upon  courts- 
martial  for  the  trial  of  officers  or  soldiers  of  " other  forces" 
by  the  77th  Article  of  War,  except  in  case  of  forces  of  the 
Marine  Corps  detached  for  service  with  the  Army.2 

135.  Rank  of  Members. — All  commissioned  officers  of 
the  staff  or  line,  having  actual  military  rank,  are  eligible 
for  detail  as  members  of  a  court-martial.     Members  sit 
upon  the  court  according  to  their  relative  rank,  the  senior 
in  rank  always  being  president  of  the  court.     Military 
rank,  as  well  as  commission  as  an  officer,  is  necessary  for 
the  reason  that,  by  Article  95,  members  give  their  votes 
according  to  rank;    and,  by  Article  79,  no  officer  shall, 
when  it  can  be  avoided,  be  tried  by  officers  inferior  to  him 
in  rank;  and,  by  custom  of  service,  officers  are  seated  on 
the  court  in  order  of  rank.     By  the  Act  of  June  13,  1905, 


1  See  ante,  par.  50,  51. 

2  See  ante,  par.  50. 


ORGANIZATION  OF  COURTS-MARTIAL  71 

retired  officers  are,  with  their  consent,  eligible  for  detail  on 
courts-martial  and  may  be  assigned  to  such  duty  by  the 
Secretary  of  War. 

136.  Number  of  Members. — The  number  of  members 
as  required  by  the  75th  Article  of  War  may  vary  from  five 
to  thirteen,  the  former  being  the  minimum  and  the  latter 
the  maximum  number  to  constitute  a  legal  court-martial. 
Five  members  constitute  a  quorum,  but  a  lesser  number 
may  meet  and  adjourn,  and  if  five  members  are  present 
and  one  is  objected  to,  the  other  four  may  try  and  determine 
the  challenge;    but  in  every  case,  throughout  the  trial,  at 
least  five  members  must  be  present  and  duly  sworn  to  try 
the  case. 

In  revision  proceedings,  also,  at  least  five  members  of 
the  court  which  tried  the  case  must  re-assemble  to  con- 
sider and  act  upon  matters  connected  with  the  case  re- 
ferred to  it  by  the  convening  authority,  and  their  final 
action  will  be  the  action  of  the  court. 

137.  Determination  as  to  Number  of  Officers. — The 
question  as  to  the  number  of  officers,  between  five  and 
thirteen,  to  constitute  any  general  court-martial  is  de- 
termined by  the  convening  officer,  taking  into  considera- 
tion the  demands  and  exigencies  of  the  service  at  the 
time.     His  decision  within  those  limits,  as  contained  in 
the  order  constituting  the  court,  is  conclusive.1 

138.  New  Members. — Whenever  a  court-martial  is,  from 
any  cause,  reduced  below  the  minimum,  the  court  should 
adjourn,  reporting  the  fact  to  the  convening  authority. 
New   members   may   then  be  added.     If  the  reduction 
below  the  minimum  takes  place  during  a  trial  and  after 
testimony  has  been  taken,  the  court  should  preferably  be 
dissolved  and  a  new  court  ordered.2    If  a  new  member 
is  added  after  the  trial  is  begun,  he  is  open  to  challenge, 

1  Martin  v.  Mott,  12  Wheat.  (25  U.  S.)  19;  6  Op.  Attorney-General, 
506. 

3  Court-martial  Manual,  pp.  12  and  28. 


72  MILITARY  LAW 

as  any  other  member;  he  must  be  duly  sworn  if  accepted; 
and  all  the  testimony  previously  taken  should  be  read  to 
him  in  the  presence  of  the  parties.  If  any  member  is 
absent  during  the  introduction  of  evidence,  he  should  not 
thereafter  take  part  in  the  trial.  But  if  he  reports  again 
for  duty  with  the  court,  all  evidence  and  material  pro- 
ceedings taken  in  his  absence  must  be  read  to  him  before 
he  begins  to  act  upon  the  court,  and,  no  objection  being/ 
made,  and  the  court  permitting  him  to  sit,  his  sitting  will  not 
invalidate  the  proceedings. 

139.  The  promotion  or  advancement  in  rank  or  grade 
of  a  member  does  not  affect  his  competency,  but  if  dis- 
missed or  discharged  from  the  service  he  is  no  longer  a 
commissioned  officer  and  cannot  act  upon  the  court.     If 
retired  he  is  only  eligible  to  sit  after  giving  his  consent 
thereto  and  being  assigned  to  such  duty  by  the  Secretary 
of  War.1 

140.  The  79th  Article  of  War  provides  as  follows: 

Article  79. — Officers  shall  be  tried  only  by  general 
courts-martial ;  and  no  officer  shall,  when  it  can  be  avoided, 
be  tried  by  officers  inferior  to  him  in  rank. 

This,  like  determining  the  number  of  officers  that  shall 
constitute  the  court,  is  left  to  the  discretion  of  the  con- 
vening authority.  The  fact  that  an  officer  sitting  upon 
a  court-martial  is  junior  in  rank  to  the  accused  is,  of 
itself,  no  legal  ground  for  challenge.  But  where  such 
member  has  a  direct  and  immediate  interest  in  the  result 
if  the  accused  should  be  convicted,  as  where  he  stands 
first  in  the  list  for  promotion,  and  the  conviction  of  the 
accused  might  result  in  his  dismissal  and  give  the  member 
his  advanced  grade,  this  would  constitute  good  cause  for 
challenge  on  ground  of  interest  in  the  result. 

141.  The   President  of  a   Court-martial.— The  presi- 
dent of  a  court-martial  is  not  announced.    The  officer 

1  Act  April  23,  1904;  G.  O.  76,  War  Department,  1904. 


ORGANIZATION  OF  COURTS-MARTIAL  73 

highest  in  rank  present  will  act  as  the  president.1  He 
presides  over  the  deliberations  of  the  court  with  the  same 
authority  and  power  as  the  chairman  of  any  deliberative 
body  in  parliamentary  procedure ;  acts  as  the  mouthpiece 
and  representative  of  the  court  in  declaring  its  decisions 
and  rulings,  and  in  the  preservation  of  order  and  the  regu- 
larity of  its  proceedings;  and  sees  that  everything  is  con- 
ducted in  a  manner  befitting  a  court  of  justice.2  His 
vote,  however,  in  any  matter  whatever  before  the  court, 
has  no  more  weight  than  that  of  any  other  member, 
nor  is  any  member  bound  to  follow  his  opinion.  He  calls 
the  court  to  order  at  the  proper  time,  and  sees  that  order 
is  preserved  in  the  court-room  both  by  members  and 
others  present.  He  administers  the  oath  (Article  85)  to 
the  judge-advocate  after  the  court  has  been  duly  sworn 
by  the  latter,  but  he  exercises  no  command  over  the 
judge-advocate  or  members  of  the  court  and  is  on  the 
same  status  as  to  being  subject  to  challenge,  etc.,  as  any 
other  member.  It  is  his  duty,  with  the  judge-advocate, 
to  authenticate  by  his  signature  the  record  of  the  pro- 
ceedings of  the  court-martial  and  also  to  sign  all  acts, 
orders,  etc.,  requiring  it,  such  as  interrogatories  for  depo- 
sitions prepared  during  the  session  of  the  court,  etc. 

142.  Seating  of  Members. — The  members  of  the  court- 
martial  take  their  places  on  it  according  to  rank,  the  senior 
presiding,  the  next  in  rank  sitting  on  his  right  and  the 
next  senior  on  his  left,  and  so  alternating  from  right  to 
left  according  to  rank  until  the  junior  is  last,  near  the 
foot  of  the  table.  The  judge-advocate  usually  sits  at  the 
foot  or  at  a  smaller  table  near  it. 

In  important  cases  or  where  it  is  deemed  desirable,  the 
members  are  arranged  to  sit  on  one  side  of  the  table, 
the  president  in  the  center  and  the  other  members  on 

1  A.  R.  953. 

2  See  Manual  of  Military  Law,  War  Office  (England),  1894,  p.  640. 


74  MILITARY  LAW 

his  right  and  left,  alternately,  according  to  rank;  the 
judge-advocate  and  the  reporter  being  at  a  separate  table 
opposite  the  president,  with  each  witness,  when  testifying, 
on  his  right.  The  accused  and  his  counsel  are  seated  at 
a  table  on  the  other  side  of  the  witness  from  the  judge- 
advocate,  facing  the  court.  This  enables  the  members 
of  the  court  to  better  hear  the  judge-advocate,  the  accused 
and  his  counsel,  and  to  observe  the  witness  while  deliver- 
ing his  testimony. 

143.  Conduct  of  Members. — A  court-martial   has   no 
power  to  punish  jts  members,   but,  by  Article  87,  "all 
members  of  a  court-martial  are  to  behave  with  decency 
and  calmness/'  and  for  disrespectful  language  or  disorderly 
conduct  any  member  may  have  charges  preferred  against 
him   as   for    other   offenses    against    military    discipline. 
Improper  words  used  by  him  should  be  taken  down  in 
writing,    and   any    disorderly   conduct   reported   to    the 
appointing  authority.1 

144.  The    court-martial    corresponds   in    its   character 
to  the  civil  court,  and  includes  in  its  powers  the  functions 
there  exercised  by  both  the  judge  and  the  jury.     The  con- 
duct  of  members   should   be   accordingly   dignified   and 
attentive.    Inattention  of  a  member  is  reprehensible,  and 
any  act  indicating  it  tends  to  lower  the  dignity  of  the  court. 

145.  Quorum. — So  long  as  the  number  of  its  members 
constitute  a  legal  quorum  its  membership  may  be  changed, 
without  affecting  the  legality  of  the  court,  by  the  relief 
and  assignment  to  other  duty  of  some  of  its  members  or 
by  addition  of  new  members;    but  the  membership  of  a 
court  should  never  be  changed  if  it  can  be  avoided  after 
it  has  entered  upon  the  trial  of  any  case. 

146.  Performance  of  Other  Duties. — A  member  of  a 
court-martial  stationed  at  the  place  where  it  sits  is  liable 
to   duty   with   his   command   during  adjournment   from 

1  A.  R.  954. 


ORGANIZATION  OF  COURTS-MARTIAL  75 

day  to  day.  Courts  will,  as  far  as  practicable,  hold 
their  sessions  so  as  to  interfere  least  with  ordinary  routine 
duties.1  It  is  usual,  however,  to  excuse  the  judge- 
advocate  from  other  duties  in  important  or  extended 
cases,  because  of  the  necessity  of  preparation  of  the 
record  for  each  day's  sessions,  and  other  duties  connected 
with  the  meeting  of  the  court,  such  as  the  examination 
of  cases,  subpoenaing  of  witnesses,  etc. 

147.  Uniform. — The  dress  uniform  is  prescribed  to  be 
worn  by  members  of  general  courts-martial  and  courts 
of  inquiry.2  But  in  commands  not  provided  with  dress 
uniform  the  service  uniform  will  be  worn  for  those  duties.3 
Sabers  are  worn  in  each  case  by  the  members;  the  judge- 
advocate  and  the  counsel,  if  a  military  person,  appear  in 
the  same  uniform  as  the  members  but  without  side-arms. 
Military  witnesses  wear  the  same  uniform  as  the  members, 
with  side-arms. 

1  A.  R.  952. 

2  G.  O.  197,  1904. 
8  Cir.  37,  1905. 


CHAPTER  XII 
THE  JUDGE-ADVOCATE—COUNSEL  FOR  ACCUSED 

148.  The  appointment  of  a  judge-advocate  is  provided 
for  by  the  74th  Article  of  War. 

Article  74. — Officers  who  may  appoint  a  court-martial 
shall  be  competent  to  appoint  a  judge-advocate  for  the 
same. 

The  order  convening  a  general,  garrison,  or  regimental 
court-martial  designates  the  officer  who  is  to  act  as  the 
judge-advocate.  He  is  not  a  member  of  the  court  and  has 
no  voice  in  its  decisions.  His  duty  is  that  of  a  prosecutor 
of  the  case  for  the  United  States,  subject  to  the  limitations 
of  the  90th  Article  of  War,  which  requires  him,  after 
the  prisoner  has  made  his  plea,  to  "so  far  consider  him- 
self counsel  for  the  prisoner  as  to  object  to  any  leading 
question  to  any  of  the  witnesses,  and  to  any  question  to 
the  prisoner  the  answer  to  which  might  tend  to  criminate 
himself/'  He  must  act  as  adviser  of  the  court  upon  ques- 
tions of  law  when  requested  by  it,  but  not  otherwise; 
all  his  legal  opinions  must  be  given  in  open  court,  the 
accused  and  his  counsel  having  the  right  to  be  present 
and  hear  them.  In  his  opinion  he  must  confine  himself 
to  the  question  asked  and  in  no  manner  attempt  to  influ- 
ence the  court. 

149.  The  judge-advocate  is  not  subject  to  challenge, 
but  if  he  is  the  actual  accuser  and  a  material  witness 
with  a  hostile  animus  in  the  case,  such  as  would  prevent 

76 


THE  JUDGE-ADVOCATE  77 

his  dealing  fairly  and  justly  with  the  accused,  the  fact  should 
be  made  known,  by  the  judge-advocate  himself,  to  the 
convening  authority,  who  would  properly  relieve  him 
in  that  case.  A  member  cannot  act  as  judge-advocate, 
nor  has  the  court  any  authority  to  name  a  judge-advocate 
in  his  absence.  If  the  absence  is  for  any  considerable 
time  the  court  should  report  the  absence  to  the  convening 
authority  for  his  information,  and  adjourn,  awaiting  his 
action. 

150.  Preparation  for  the  Trial. — The  judge-advocate 
having  received  the  order  convening  the  court  and  appoint- 
ing him  judge-advocate  thereof,  with  the  charges  preferred 
and  accompanying  documents,  should  furnish  the  accused 
with  a  copy  of  the  charges,  inform  him  as  to  his  right  to 
ask  for  counsel,  and  notify  him  of  the  date  and  place  of 
meeting  of  the  court,  in  sufficient  time  beforehand  for  him 
to  prepare  his  defense  and  secure  his  witnesses,  a  list  of 
whom  he  must  furnish  to  the  judge-advocate,  who  will 
take  the  necessary  steps  to  secure  their  attendance.  The 
judge-advocate  also  prepares  his  own  case  for  the  prosecu- 
tion by  examination  of  the  witnesses  as  to  the  charges 
and  specifications,  and  the  law  and  decisions  affecting  the 
particular  offense  charged,  and,  if  the  case  is  an  important 
one,  applies  to  the  convening  officer  for  authority  to 
employ  a  stenographic  reporter;  he  is  also  authorized  to 
request  the  commanding  officer  to  detail  an  enlisted  man 
to  assist  him  in  preparing  the  record.1  He  must  see  that 
the  charges  and  specifications  are  correctly  drawn,  and 
should  report  at  once,  and  before  the  court  convenes,  to 
the  convening  authority  any  mistake  or  irregularity  in 
the  order  convening  the  court,  or  any,  except  minor  errors, 
discovered  in  the  charges  and  specifications. 

Before  the  date  of  the  meeting  of  the  court  he  applies 
to  the  quartermaster  for  a  room  suitable  for  the  use  of 
1  A.  R.  994.  See  Reporter,  par.  162-164. 


78  MILITARY  LAW 

the  court,  with  necessary  tables,  chairs,  etc.,  and  for  the 
stationery  likely  to  be  used,  and  he  must  see  that  all  these 
things  are  in  readiness  before  the  hour  fixed  for  the  meeting 
of  the  court. 

151.  Duties  during  Trial. — The  court  having  met  and 
organized,    the   judge-advocate    presents    his    cases    and 
conducts  the  prosecution  in  such  manner  as  will  best  and 
most  clearly  place  the  facts  before  the  court.     Unless 
otherwise  directed  by  the  convening  authority  he  deter- 
mines the  order  in  which  cases  referred  to  him  for  trial 
shall  be  brought  before  the  court  and  the  best  method  of 
conducting  them,  and  he  cannot  be  directed  by  the  court  J 
as  to  his  manner  of  presenting  the  case. 

As  recorder  he  must  keep  a  full  and  accurate  record  of 
the  proceedings  and  affix  his  signature  to  each  day's 
proceedings.  The  entire  record  is  authenticated  by  his 
signature  and  that  of  the  president  of  the  court, 

152.  Closed  Session. — The  court  may  go  into  closed 
session  for  the  consideration  of  any  matter  coming  before 
it,  and  always  does  so  when  considering  the  finding  and 
sentence.     When  the  court  is  to  be  closed  the  president 
of  the  court  so  announces,  and  all  persons,  including  the 
accused,  his  counsel  and  the  judge-advocate,  withdraw 
from  the  room.1 

Where  there  are  many  spectators  present  it  is  sometimes 
more  convenient  for  the  court  itself  to  withdraw  to  an 
adjacent  room  for  deliberation  in  closed  session  than  to 
clear  the  room,  and  this  is  frequently  done  in  such  cases, 
the  members  returning  to  their  seats  upon  the  conclusion 


1  The  Act  of  July  27,  1892,  requires  that,  whenever  a  court-martial 
shall  sit  in  closed  session,  the  judge-advocate  will  withdraw;  this  with- 
drawal should  be  stated  in  the  record.  If  not  noted  therein,  however, 
the  presumption  is  that  when  the  record  states  that  "  the  court  was 
then  closed,"  the  law  was  complied  with,  and  it  will  not  invalidate  the 
proceedings  if  the  record  should  fail  to  state  when  the  court  was  closed 
that  <cthe  judge-advocate  then  withdrew.'7 


THE  JUDGE-ADVOCATE  79 

of  their  deliberation,  and  the  president  then  announcing 
that  the  court  is  re-opened. 

When  the  court  is  re-opened,  the  accused,  his  counsel 
and  the  judge-advocate  being  present,  the  decision  of  the 
court  on  any  interlocutory  question  is  announced.  The 
finding  and  the  sentence,  however,  are  disclosed  only  to 
the  judge-advocate.  The  judge-advocate,  after  the  pro- 
ceedings have  been  authenticated  by  the  signature  of  the 
president  of  the  court  and  himself,  forwards  the  record 
to  the  convening  authority. 

When  the  court  adjourns  to  meet  at  the  call  of  the 
president,  the  president  informs  the  judge-advocate  of  the 
time  of  reassembling,  and  the  latter  notifies  the  members 
of  the  court. 

153.  Assembling  of  the  Court. — The  members  of  the 
court  meet  at  the  time  and  place  designated  by  the  con- 
vening authority  in  the  order  appointing  the  court,  and, 
at  the  hour  named  therein,  repair  to  the  room  set  apart 
for  its  use.  The  members  being  assembled,  the  senior  in 
rank,  being  president,  calls  the  court  to  order,  and  the 
judge-advocate  calls  the  roll  from  the  order  convening  it, 
during  which  the  members,  if  not  already  in  their  places, 
seat  themselves.1 

In  important  cases  the  judge-advocate  places  before 
each  member  a  copy  of  the  order  convening  the  court, 
and  of  the  charges  and  specifications,  the  former  that 
they  may  know  the  organization  of  the  court  and  the 
legality  of  its  constitution,  and  the  latter  that  they  may 
be  made  aware  of  "the  matter  now  before"  them2  and 
that  it  is  properly  within  their  jurisdiction. 

In  minor  cases,  when  members  of  the  court  are  not 
furnished  with  separate  copies  thereof,  it  is  usual  to  place 
the  charges  before  the  court  as  referred  to  it  for  trial, 

1  See  ante,  par.  142. 

2  See  Oath  of  Members,  Article  84,  post,  par.  174. 


80  MILITARY  LAW 

thus  bringing  the  matter  before  them  as  contemplated 
in  their  oath.1 

If  any  members  are  absent,  it  is  the  duty  of  the  judge- 
advocate  to  ascertain,  if  possible,  the  cause  thereof,  and 
embody  it  in  the  record.  A  copy  of  any  orders,  surgeon's 
certificates,  etc.,  authorizing  absence  should  be  appended 
to  the  record.2 

If  a  quorum  is  present,  the  court  attends  to  any  prelimi- 
nary business  it  may  have  on  hand  or  that  may  come  before 
it,  which,  being  completed,  the  judge-advocate  announces 
his  readiness  to  proceed  with  the  case  referred  to  him 
for  trial  by  that  court. 

154.  Introduction  of  the  Accused;    Counsel  for  the 
Accused. — The  court  being  in  readiness  the  accused  is 
brought  before  it,  and  may  introduce  counsel.     In  general 
court-martial  cases  this  is  usually  some  suitable  officer 
detailed  by  the  post  commander  on  request  of  the  prisoner 
to  be  furnished  with  counsel.     If  there  be  no  such  officer 
available  for  detail,  the  fact  will  be  reported  to  the  authority 
appointing  the  court  for  his  action.3    The  accused  is  not  1 
of  right  entitled  to  counsel,  but  the  privilege  is  almost 
invariably  conceded,  and,  if  refused,  such  refusal  may  be 
ground  for  the  disapproval  of  the  proceedings.4 

155.  The  counsel  may  be  either  a  civilian  or  a  military 
person;    in  case  the  accused  has  no  counsel  the  duties 
thereof  devolve  upon  the  judge-advocate.     The  duty  of 
the  judge-advocate  is  to  bring  out  all  facts  connected 
with  the  case,  those  favorable  to  the  prisoner  as  well  as 
against  him,  the  object  of  the  court  being  not  to  con- 
vict or  to  acquit,  but  to  administer  justice.     This  is  a 
fact  that  should  not  be  lost  sight  of  in  all  trials  by  courts- 
martial. 

1  See  Oath  of  Members,  Article  84,  post,  par.  174. 

2  See  Appendix  E,  4. 

3  A.  R.  969. 

4  Dig.  Op.  J.  A.  G.  984;  Court-martial  Manual,  p.  25. 


THE   JUDGE-ADVOCATE  81 

156.  The  accused  should  not  be  in  irons  when  brought 
before  the  court,  unless  there  is  reasonable  ground  to 
believe  that  he  will  attempt  to  escape  or  commit  vio- 
lence;   and  even  then  it  is  preferable  to  place  an  ade- 
quate guard  over  him.1     But  the  fact  that  he  was  tried 
while  in  irons  will  not  invalidate  the  proceedings  ,2  nor 
will  his  escape  while  the  trial  is  pending. 

A  court  having  once  duly  assumed  jurisdiction  of  an 
offense  and  person  cannot,  by  any  wrongful  act  of  the 
accused,  be  ousted  of  its  authority  or  discharged  from 
its  duty  to  proceed  fully  to  try  and  determine,  according 
to  law  and  its  oath.  Thus  the  fact  that,  pending  the 
trial,  the  accused  has  escaped  from  military  custody  fur- 
nishes no  ground  for  not  proceeding  to  a  finding,  and, 
in  the  event  of  conviction,  to  a  sentence  in  the  case; 
and  the  court  may  and  should  find  and  sentence  as  in 
any  other  case.3 

157.  Duty  of  Counsel  for  Accused. — The  duty  of  the 
judge-advocate,  as  counsel  for  the  accused  when  he  has 
no  other  counsel,  is  prescribed  by  the  90th  Article  of 
War,  which  states  that  "he  shall  so  far  consider  himself 
counsel  for  the  prisoner  as  to  object  to  any  leading  ques- 
tion to  any  of  the  witnesses,  and  to  any  question  to  the 
prisoner  the  answer  to  which  might  tend  to  criminate 
himself. "     But  it  is  now  provided  that  the  commanding 
officer  of  a  post  where  a  general  court-martial  is  con- 
vened shall,  at  the  request  of  any  prisoner  who  is  to  be 
arraigned,  detail  a  suitable  officer  as  counsel  for  his  de- 
fense.   "An  officer  so  detailed  should  perform  such  duties 
as  usually  devolve  upon  counsel  for  the  defendant  before 
civil  courts  in  criminal  cases.     As  such  counsel  he  should 
guard  the  interests  of  the  prisoner  by  all  honorable  and 

1  Dig.  Op.  J.  A.  G.  1047. 

2  Court-martial  Manual,  p.  21. 

3  Id.  p.  15. 


82  MILITARY  LAW 

legitimate  means  known  to  the  law,  so  far  as  they  are 
not  inconsistent  with  military  relations."  1 

158.  How  far  an  officer  detailed  as  counsel  is  expected 
to  go  in  his  defense  of  a  prisoner  is  sometimes  an  important 
question  to  him,   especially  when  he  has  been  detailed 
without  consulting  his  wishes  or  has  since  been  made  aware 
of  the  actual  guilt  of  the  accused  by  his  confession  to  him, 
or  otherwise.     Where  the  accused  confesses  his  guilt  to 
his  counsel,  in  the  course  of  defense,  the  officer  is  under 
the  same  confidential  relations  with  the  accused  as  an 
attorney  is  with  his  client  in  civil  practice,  and  cannot 
divulge  the  secrets  confided  to  him.     It  is  not  his  duty 
to  advise  the  judge-advocate   as   to  his  procedure;  the 
judge-advocate  must  be  relied  upon  to  conduct  the  prose- 
cution according  to  the  evidence  in  the  hands  of  the  govern- 
ment and  has  no  right  to  any  information  solely  in  the 
hands  of  the  accused  or  his  counsel,  unless  he  obtains  it 
by  legal  means. 

159.  The  counsel  not  only  has  all  the  duties  prescribed 
by  the  90th  Article  of  War  for  the  judge-advocate  when 
acting  as  such,  but  it  is  also  his  duty  to  advise,  and  to 
secure,  through  the  judge-advocate's  process,  the  necessary 
witnesses  for  the  defense;    to  test  the  witnesses  for  the 
prosecution   by   cross-examination;     to   insist   upon   the 
introduction  of  the  best  evidence  and  the  exclusion  of  all 
that  is  irrelevant,  immaterial  or  improper;    to  draw  out 
evidence  favorable  to  the  accused,  and  to  see  that  the 
prosecution  is  conducted  in  accordance  with  legal  methods 
of  procedure  and  the  laws  governing  the  introduction  of 
evidence. 

1 60.  The  counsel  for  the  accused,  in  his  capacity  as 
such,  is  free  to  act  upon  his  own  judgment  and  to  present 
such  defense  as  will  best  show  the  entire  innocence  of  the 
accused,  or  a  lesser  criminality  than  that  charged. 

1  A.  R.  969. 


THE  JUDGE-ADVOCATE  83 

It  will,  therefore,  not  be  inconsistent  with  his  "  military 
relations"  for  him  to  present  all  the  evidence  practicable 
for  the  defense,  or  to  cross-examine  carefully  witnesses  for 
the  prosecution,  even  if  they  are  his  superiors  in  rank, 
and  to  compare  their  evidence  with  that  of  others  or 
that  given  by  the  witness  himself;  but  having  made  such 
comparison  the  conclusions  should  be  left  to  the  court. 
He  will  not  be  justified  in  undue  criticism  or  aspersions 
made  upon  any  witness,  or  upon  the  character  of  officers; 
such  aspersions  usually  being  subversive  of  discipline  and 
tending  to  create  prejudice  rather  than  to  promote  justice. 
It  is  no  part  of  the  duty  of  the  counsel  for  the  accused 
to  make  use  of  technicalities,  such  as  are  sometimes  used 
in  civil  criminal  courts,  for  the  purpose  of  causing  delay 
in  the  proceedings  or  to  mislead  the  court;  he  will  never 
be  justified  in  the  use  of  misleading  argument,  disingenu- 
ous pleas  or  appeals  to  the  passions,  sympathies  or  pre- 
judice, of  the  members  of  the  court. 

161.  Every  officer  detailed  as  counsel  ought  to  con- 
sider well  his  duty  both  to  the  accused  and  to  the  govern- 
ment, and  his  own  judgment  and  experience  will  advise 
him  as  to  what  are  "honorable  and  legitimate  means," 
not  inconsistent  with  his  "military  relations,"  by  which 
he  may  defend  the  accused.     The  words  "honorable  and 
legitimate"  should  be  construed  together  as  governing  his 
action  in  determining  whether  an  act  is  inconsistent  with 
his  "military  relations"  or  not. 

162.  Reporter. — The  reporter,  if  one  has  been  allowed 
(see  par.  150),  is  then  introduced  and  takes  the  following 
oath,  administered  by  the  judge-advocate:    "You  swear 
that  you  will  faithfully  peiform  the  duties  of  reporter  to 
this  court.     So  help  you  God." 

163.  To  assist  him  in  keeping  and  making  up  the  record 
of  proceedings,  the  judge-advocate  may  be  authorized,  in 
important  cases,  to  employ  a  stenographic  reporter.     This 


$4  MILITARY  LAW 

reporter  must,  before  entering  upon  his  duties,  take  the 
oath  or  affirmation  that  he  will  ''faithfully  perform"  the 
same.1  The  authority  is  limited  to  general  courts-mar- 
tial, and  to  cases  in  which  the  convening  authority  con- 
siders it  necessary.2  Whenever  the  judge-advocate,  there- 
fore, desires  a  stenographic  reporter,  he  must  make  appli- 
cation for  authority  to  employ  one  to  the  convening 
authority,  stating  the  circumstances  which  he  believes 
makes  such  employment  necessary.3 

164.  The  commanding  officer  will,  when  necessary,  detail 
an  enlisted  man  to  assist  the  judge-advocate  of  a  general 
court-martial  in  preparing  the  record.4     But  no  person 
in  the  military  or  civil  service  of  the  government  can 
lawfully  receive  extra  compensation  for  clerical  duties  per- 
formed for  a  military  court.5 

165.  Interpreter. — If  an  interpreter  is  also  necessary,  he 
may  be  introduced  at  this  time,  and  the  judge-advocate 
administers  the  following  oath  to  him:   "You  swear  that 
you  will  truly  interpret  in  the  case  now  in  hearing.     So 
help. you  God."     If,  however,  the  services  of  an  inter- 
preter are  only  needed  for  a  certain  part  of  the  trial,  as  to 
interpret  the  testimony  of  a  witness  and  the  like,  he  may 

1  Sec.  1203,  Revised  Statutes. 

2  A.  R.  994. 

8  When  a  reporter  is  employed  under  authority  as  above,  he  is  paid 
by  the  Pay  Department,  upon  certificate  of  the  judge-advocate  that 
the  services  have  been  rendered,  not  to  exceed  $1.00  an  hour  for  the 
time  occupied  in  court  by  himself  or  a  competent  assistant,  and  10 
cents  per  100  words  for  transcribing  the  notes,  and  5  cents  per  100 
words  for  copying  exhibits;  for  carbon  copies,  if  ordered  he  will  be 
paid  2  cents  per  100  words.  Carbon  copies,  however,  will  only  be 
ordered  with  the  approval  of  the  convening  authority,  or,  in  cases  of 
courts  of  inquiry  and  retiring  boards,  of  the  Secretary  of  War.  If  the 
court  is  held  more  than  ten  miles  from  the  place  of  employment  of 
himself  or  his  assistants,  they  will  each  be  allowed  mileage  over  the 
shortest  usually  travelled  route  at  the  rate  of  8  cents  per  mile  going 
to  the  place  of  holding  the  court,  and  $3.00  a  day  as  expenses  while 
necessarily  kept  by  the  judge-advocate  away  from  place  of  employ- 
ment. (A.  R.  995;  G.  O.  153,  War  Department,  1905.) 

4  A.  R.  994. 

5  A.  R.  996. 


THE  JUDGE-ADVOCATE  85 

be  introduced  and  take  the  oath  at  the  time  his  services 
are  needed. 

\     The  necessity  for  an  interpreter  is  determined  by  the 
I  court,  and  he  is  employed  by  its  order.1     He  is  allowed 
the  pay  and  allowance  of  a  civilian  witness  and  is  paid  by 
the  Pay  Department  on  the  certificate  of  the  judge-advo- 
cate that  he  was  employed  by  such  order. 

1  A.  R.  997. 


CHAPTER  XIII 

CHALLENGES— OATH  OF  MEMBERS  AND 
JUDGE-ADVOCATE 

1 66.  Challenges. — The  accused  being  present,  his  coun- 
sel introduced,  and  ether  preliminary  proceedings  com- 
pleted, the  order  convening  the  court  is  read  to  the  accused, 
so  as  to  afford  him  the  opportunity  to  challenge  any  mem- 
ber thereof.     The  right  to  challenge  is  given  by  the  88th 
Article  of  War,  as  follows: 

Article  88. — Members  of  a  court-martial  may  be  chal- 
lenged by  a  prisoner,  but  only  for  cause  stated  to  the 
court.  The  court  shall  determine  the  relevancy  and 
validity  thereof,  and  shall  not  receive  a  challenge  to  more 
than  one  member  at  a  time. 

The  right  here  given  is  statutory,  does  not  apply  to  the 
summary  court,  and  is  limited  to  but  one  member  at  a 
time  "for  cause  stated."  Peremptory  challenges,  as  al- 
lowed at  common  law,  are  not  permitted. 

This  does  not,  however,  prevent  objection  to  the  entire 
court  as  being  illegally  organized  and  therefore  not  having 
legal  existence  or  right  to  try  the  case.  This  objection 
constitutes  a  plea  to  the  jurisdiction  and  at  once  brings  up 
the  question  of  its  power  to  legally  try  the  case  (see  Juris- 
diction, par.  52  et  seq.),  and,  if  sustained,  trial  of  the  ac- 
cused cannot  proceed. 

167.  Challenges  may  be  made  either  orally  or  in  writ- 
ing.  The  challenged  member  may  remain  silent  or  he  may 
respond  if  he  wishes;    and  the  admission  by  him  of  the 

86 


CHALLENGES  87 

facts  stated  will  cause  the  court  to  excuse  him,  provided 
those  facts  constitute  a  legal  ground  for  objection.  If  the 
statement  is  not  satisfactory,  the  accused  may  request 
that  the  challenged  member  be  placed  on  his  voir  dire, 
in  which  case  the  judge-advocate  administers  to  him  the 
following  oath:  "You  swear  that  you  will  true  answers 
make  to  questions  touching  your  competency  as  a  member 
of  the  court  in  this  case.  So  help  you  God."  Questions 
touching  his  competency  may  then  be  put,  and  the  replies 
thereto  are  made  under  the  responsibility  of  his  oath,  the 
accused  asking  such  questions  as  may  relate  to  and  test 
the  competency  of  the  member,  followed  by  the  questions 
of  the  judge-advocate,  and  by  such  questions  from  the 
court  as  they  may  deem  pertinent,  the  record  showing  the 
entire  proceedings,  including  the  questions,  answers,  and 
action  of  the  court.  The  court  in  acting  upon  a  challenge 
always  determines,  in  closed  court,  the  challenged  mem- 
ber withdrawing,  whether  the  facts  stated  constitute  a 
good  ground  for  challenge  or  constitute  legal  objection, 
and,  if  so,  whether  they  are  applicable  to  the  case  in  ques- 
tion. 

1 68.  Challenges  to  the  Poll.— Challenges  to  the  poll,  or 
individual  challenges,  are  usually  divided  into  two  classes, 
viz: 

a.  Principal  challenges. 

b.  Challenges  to  the  favor. 

169.  Principal  Challenges. — A  principal  challenge  is  one 
in  which  the  facts  stated,  if  found  correct,  constitute  a 
prima  facie  cause  for  the  excuse  of  the  challenged  member, 
such  as : 

a.  The  fact  that  the  challenged  member  was  a  member 
of  a  court  of  inquiry  which  had  investigated  the  charges, 
or  of  a  regimental  court  for  doing  justice  from  which  appeal 
in  the  case  on  trial  has  been  taken. 

6.  That,  under  orders  from  his  proper  superior,  he  had 


88  MILITARY  LAW 

made  a  personal  investigation  of  the  charges  and  had  sub- 
mitted his  opinion  thereon. 

c.  That    the   member    challenged  was  the  accuser  or 
prosecutor  and  a  material  witness  in  the  case. 

d.  That,  it  being  a  rehearing  of  the  case,  the  challenged 
member  was  a  member  of  the  court  in  the  former  trial. 

e.  That  the  challenged  member  stands  next  for  pro- 
motion and  will  gain  in  rank  by  the  dismissal  of  the  accused. 
The  interest  of  the  member  in  such  case  is  so  great  as  to 
justify  challenge  and  excuse  by  the  court;  but  it  is  not  a 
sufficient  ground  of  challenge  that  a  member  will  gain  a 
file  by  the  dismissal. 

170.  In  cases  of  principal  challenge,  the  objection  being 
made,  and  the  facts  found  as  stated,  the  member  should 
be  excused;  but,  if  found  as  stated,  and  yet  the  objection 
not  sustained,  while  it  might  not  invalidate  the  proceed- 
ings, yet  it  has  been  held  good  ground  for  disapproval  of 
the  proceedings  and  sentence.1 

171.  Challenges  to  the  Favor. — Challenges  to  the  favor 
include  all  those  in  which  prejudice,  bias,  or  interest  is 
claimed  to  exist.2    The  amount  of  each  must  be  shown  by 
evidence  or  admitted  by  the  challenged  member,  who  may 
make  such  statement,  pertinent  to  the  challenge,  as  he 
desires,  or  he  may  remain  silent. 

The  following  are  grounds  of  such  objection: 
a.  Previous  opinions,  formed  or  expressed.  Such  opinion 
must,  however,  be  honestly  entertained  and  be  decided, 
not  a  transient  impression  or  hypothetical  view,  or  formed 
on  mere  rumor,  or  reading  of  newspapers,  if  the  member  is 
able  to  say  that  he  can  and  will  give  an  impartial  decision 
on  the  evidence  submitted.  If,  however,  it  is  based  on 
statements  of  witnesses  or  reading  reports  of  the  testimony 
in  the  case  this  would  operate  as  a  disqualification.3  "If 

1  Davis'  Military  Law,  p.  86. 

2  Ives'  Military  Law,  p.  91 ;  Davis'  Military  Law,  p.  86. 

3  Davis'  Military  Law,  p.  89;  Hopt  v.  Utah,  120  U.  S.  430. 


CHALLENGES  89 

not  absolutely  positive  the  test  which  has  been  applied 
in  civil  courts  is  whether  it  is  so  fixed  as  to  require  evidence 
to  remove  it."  1 

6.  Personal  prejudice  or  hostility.  Every  member  of 
the  court  should  have  a  mind  open  and  free  to  the  reception 
of  testimony,  without  bias,  prejudice  or  hostility  that 
may  influence  his  judgment  on  the  evidence  received. 
Decided  personal  animosity  from  whatever  cause,  or 
prejudice  or  hostility  to  the  accused,  sustained  by  proof 
of  hostile  act  or  of  language,  constitute  a  good  ground 
for  challenge,  as  does  also  the  fact  that  the  member  pre- 
ferred the  charges  in  the  case,  not  ministerially  under  the 
orders  of  a  superior,  but  as  the  actual  accuser.2 

c.  Being  a  material  witness.    The  fact  that  a  member 
of  the  court  is  a  material  witness  for  the  prosecution  is 
cause  for  challenge  but  does  not,  of  itself,  constitute  ground 
for  excuse  of  the  challenged  member.     The  circumstances 
of  each  case  must  determine  the  validity  of  the  challenge. 
It  is  usual,  however,  and  always  best  when  it  can  be 
done,  to  excuse  the  member  if  objected  to  on  this  ground 
and  the  fact  is  proved  or  admitted. 

d.  Participation  in  a  former  trial  in  a  different  case 
but  involving  the  same  question.     This  is  not,  of  itself, 
a  sufficient  ground  for  excuse,  but  if  the  challenged  mem- 
ber has  formed  an  opinion  from  the  previous  trial  as  to 
the  guilt  or  innocence  of  parties  in  like  cases,  he  may  be 
excused. 

e.  Intimate  personal  relations.     Where  a  member  of  a 
court  is  in  fact  likely  to  be  biased  by  intimate,  friendly, 
social,  or  other  personal  relations  with  the  accused,  he 
may,  by  custom   of   the  service,  be  objected  to  by  the 
judge-advocate  as  justly  as  he  might  be  by  the  accused 
on  the  ground  of  hostility.3 

1  Winthrop's  Abr.  Military  Law,  3d  Ed.,  p.  84. 

2  Id.,  p.  85. 

8  Id.,  p.  86;  Court-martial  Manual,  p.  27. 


00  MILITARY  LAW 

172.  After  the  accused  has  used  his  right  of  challenge 
the  judge-advocate  may  also,  and  in  like  manner,  chal- 
lenge members  "for  cause  stated."     It  must  be  noted 
that  these  challenges  must  be  made  by  one  or  the  other  of 
the  parties — the  accused  or  the  judge-advocate;  the  court- 
martial  is  never  authorized  to  excuse  a  member  at  his  own 
request  or  in  the  absence  of  a  challenge.      A  member, 
not  challenged,  who  thinks  himself  disqualified,  can  be 
relieved  only  by  application  to  the  convening  authority. 

It  is  usual  for  the  member,  if  not  previously  relieved, 
to  make  known  the  ground  for  his  disqualification  so  that 
a  challenge  may  be  made  by  the  party  and  be  acted  upon 
by  the  court. 

173.  The  burden  of  proof  to  sustain  the  challenge  lies 
with   the  party  challenging  and,   to   be  sustained,   the 
challenge  must  have  a  majority  vote  of  the  members  of 
the  court.    If  the  vote  on  the  question  is  a  tie  the  challenge 
is  not  sustained. 

174.  Oath  of  Members. — The  challenges  having  been 
completed  and  a  legal  quorum  remaining  in  the  case,  the 
members   are   duly   sworn   by  the  judge-advocate,  who 
administers  the  following  oath : 

"You,  A.  B.;  C.  D.,  etc.,  (naming  each  according  to 
rank  from  the  president  to  the  junior  member,)  do  swear 
that  you  will  well  and  truly  try  and  determine,  according 
to  evidence,  the  matter  now  before  you,  between  the 
United  States  of  America  and  the  prisoner  to  be  tried,  and 
that  you  will  duly  administer  justice,  without  partiality, 
favor,  or  affection,  according  to  the  provisions  of  the  rules 
and  articles  for  the  government  of  the  armies  of  the 
United  States,  and  if  any  doubt  should  arise,  not  explained 
by  said  articles,  then  according  to  your  conscience,  the 
best  of  your  understanding,  and  the  custom  of  war  in  like 
cases ;  and  you  do  further  swear  that  you  will  not  divulge 
the  sentence  of  the  court  until  it  shall  be  published  by  the 


OATH  OF  JUDGE-ADVOCATE  91 

proper  authority,  except  to  the  judge -advocate;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any 
particular  member  of  the  court-martial,  unless  required 
to  give  evidence  thereof,  as  a  witness,  by  a  court  of  justice, 
in  due  course  of  law.  So  help  you  God."  J 

Oath  of  Judge-Advocate. — The  members  having  been 
duly  sworn,  the  president  of  the  court  then  administers  the 
following  oath  to  the  judge-advocate:  "You,  A.  B.,  do 
swear  that  you  will  not  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial, 
unless  required  to  give  evidence  thereof,  as  a  witness,  by 
a  court  of  justice,  in  due  course  of  law;  nor  divulge  the 
sentence  of  the  court  to  any  but  the  proper  authority, 
until  it  shall  be  duly  disclosed  by  the  same.  So  help  you 
God."  2 

175.  Independence  of  the  Court. — The  court-martial  in 
all  its  proceedings  after  being  organized  and  duly  sworn 
is  independent   of   the   convening  authority  in  hearing 
and   determining   the   case.     "The   convening  authority 
is  without  power  to  regulate  its  conduct,  or  to  control 
or  influence  its  deliberations."  3 

176.  Postponement  of  Trial,  Continuance,  etc. — For 
any  necessary  postponement  of  the  trial,  'before  arraign- 
ment,   application    should    be    made   to   the  convening 
authority.     At    or    after    arraignment,    the    court    may, 
"for  reasonable  cause,"   grant  a  continuance  to  either 
party  for  such  time  and  as  often  as  may  appear  to  be  just; 
provided  that  if  the  prisoner  be  in  close  confinement,  the 
trial  shall  not  be  delayed  for  a  period  longer  than  sixty  1 
days.4 

Upon  application  by  the  accused  for  continuance  be- 
cause of  absence  of  a  witness,  he  must  show,  on  his  oath,  ] 

1  Article  84.     See  post,  par.  791. 

2  Article  85.     See  post,  par.  792. 
8  Davis'  Military  Law,  p.  32. 

4  Article  93.     See  post,  par.  800. 


92  MILITARY  LAW 

that  the  witness  is  material,  and  why,  and  that  he  has  used 
due  diligence  to  secure  his  attendance,  and  has  reasonable 
ground  to  believe,  and  does  believe,  that  he  will  be  able  to 
procure  his  attendance  within  a  reasonable  time  stated. 

Application  for  any  extended  delay  will,  when  practica- 
ble, be  made  to  the  convening  authority.  If  made  to  the 
court  and  if,  in  its  opinion,  it  be  well  founded,  it  will  be 
referred  to  the  convening  authority  to  decide  whether  the 
court  shall  be  adjourned  or  dissolved.1 

1  Court-martial  Manual,  pp.  30,  31. 


CHAPTER  XIV 
ARRAIGNMENT— PLEAS 

177.  The  challenges  having  been  disposed  of  and  a 
quorum  remaining,  the  accused  is  then  arraigned.     The 
arraignment  consists  in  the  judge-advocate's  reading  to  the 
accused,  both  standing,  the  charges  and  specifications  on 
which  he  is  to  be  tried  and  receiving  his  plea  thereto. 

A  plea  is  a  formal  answer  made  by  the  accused  to  the 
charge  against  him.     Pleas  may  be  divided  into: 
I.  Pleas  to  the  jurisdiction. 
II.  Pleas  in  abatement. 

III.  Pleas  in  bar  of  trial. 

IV.  Pleas  to  the  general  issue. 

These  pleas  should  be  made  in  the  order  named. 

178.  I.  Plea  to  the  Jurisdiction.— This  plea,  if  sustained, 
denies  the  jurisdiction  of  the  court  in  that  case;  and  if  not 
sustained  and  trial  proceeds,  the  proceedings  of  the  court- 
martial,  if  duly  approved,  may  be  reviewed  by  the  civil 
courts,  and  if  the  decision  is  against  the  jurisdiction  of  the 
court-martial  its  judgment  will  be  set  aside. 

179.  Pleas  to  the  jurisdiction  involve  questions  of  the 
legal  authority  of  the  court ;  such  as : 

a.  That  it  was  convened  by  an  officer  having  no  legal 
authority  to  convene  it.1 

6.  That  its  composition  is  illegal,  being  composed  wholly 

1  Articles  72  and  73.    See  ante,  par.  34  and  41. 

93 


94  MILITARY  LAW 

or  in  part  of  members  not  authorized  by  law  to  sit  upon 
such  court-martial.1 

c.  That  the  accused  is  not  subject  to  its  jurisdiction.2 

d.  That  the  offense  is  not  against  military  law  and  not, 
therefore,  subject  to  trial  by  court-martial.3 

The  sustaining  of  any  one  of  these  pleas  made  at  this 

time  to  the  jurisdiction  inevitably  stops  proceedings  in 

the  case;  and,  if  not  sustained,  and  afterward  facts  which 

justify  the  plea  are  found,  in  a  review  of  the  proceedings 

by  a  civil  court,  to  exist,  it  will  cause  the  judgment  and 

•  sentence  of  the  court  to  be  set  aside  as  illegal  and  void, 

f  even  if  the  accused  waives  the  question  of  jurisdiction. 

Waiver  of  objection  will  never  avail  to  confer  jurisdiction 

upon  a  court  not  legally  possessing  it. 

180.  II.  Pleas  in  Abatement  (also  called  Dilatory  Pleas). 
— A  plea  in  abatement  is  based  upon  some  defect  in  the 
indictment,  or  charge,  and  is  one  that  goes  to  abate  the 
plaintiff's  action,  that  is,  to  suspend  or  put  it  off  for  the 
present,  but  not  finally.4    It  is  a  rule,  upon  all  pleas  in 
abatement,  that  he  who  takes  advantage  of  a  flaw  must,  at 
the  same  time,  show  how  it  may  be  amended.5    This  plea 
defeats  the  action,  if  sustained,  for  the  time  being,  but  the 
right  of  the  action  itself  is  not  gone  and  the  plaintiff  may 
proceed  with  it  after  the  defect  is  removed,  or  may  re-com- 
mence it.6 

181.  Such  pleas,  therefore,  serve  only  to  delay  the  trial 
until  the  correction  may  be  made,  and  for  that  reason  are 
also  called  "dilatory"  pleas.     They  may  be  made  where 
there  is  a  misnomer,  the  accused  being  charged  under  a 
wrong  name,  or  described  by  a  false  or  improper  addition 

1  See  Composition  of  Courts-martial,  ante,  Chapter  V. 
.     2  See  Jurisdiction,  ante,  par.  52  et  seq. 

3  Id. 

4  Bishop,  Cr.  Proc.,  Vol.   1,  Sec.  738-740;  3  Blackstone's  Comm., 
p.  301. 

6  4  Blackstone's  Comm.,  p.  335. 
6  Stephen  on  Pleading,  49. 


ARRAIGNMENT— PLEAS  95 

thereto.1  In  such  case  the  accused  is  bound  to  state  his 
proper  name,  and  to  point  out  the  correct  changes  to  be 
made.  But  where  the  plea  covers  simple  matter  like  a 
change  in  the  middle  name  or  initial  letter,  the  court  may 
order  the  change  made  and  proceed  with  the  trial  without 
delay  in  the  proceedings.2 

182.  If  the  accused  makes  no  objection  to  the  name  or 
designation  under  which  he  is  charged  and  pleads  guilty,  or 
not  guilty,  to  a  specification  in  which  he  is  incorrectly 
named  or  described,  such  plea  will  be  regarded  as  an  ad- 
mission by  the  accused  of  his  identity  with  the  person 
designated,  and  he  cannot  thereafter  object  to  the  plead- 
ing on  account  of  misnomer  or  misdescription,  but  he  may 
be  tried  and  punished,  even  though  they  be   erroneous ; 3 
and  a  failure,  at  the  arraignment,  to  take  notice  of  a  vari- 
ance between  the  form  of  the  specification  to  which  the 
accused  is  called  upon  to  plead  and  such  specification  as  it 
appeared  in  the  copy  of  the  charges  served  at  his  arrest,  is 
a  waiver  of  the  objection,  and  the  same  cannot  be  taken 
advantage  of  at  a  subsequent  stage  of  the  proceedings.4 

183.  Where  the  accused  has  not  been  furnished  with  a 
copy  of   the  charges  preferred  against  him,  or  where  the 
copy  furnished  is  materially  different  from  the  one  upon 
which  he  is  arraigned,  a  continuance  may  justly  be  asked 
for  under  the  provisions  of  the  93d  Article  of  War. 

Where  there  is  a  material,  difference  between  the  copy 
of  the  charges  and  specifications  furnished  the  accused  and 
that  upon  which  he  is  arraigned,  he  may  take  advantage 
of  it  by  a  plea  in  abatement.5 

184.  There  is  no  special  form  for  making  the  plea;   it 

1  Bishop,  Cr.  Proc.,  Vol.  1,  Sec.  739,  740;   4  Blackstone's  Comm.,  p. 
335. 

2  Davis'  Military  Law,  p.  108. 

3  I ves'  Military  Law,  p.  102;   Davis'  Military  Law,  p.  110;   Dig.  Op. 
J.  A.  G.  1995. 

4  Dig.  Op.  J.  A.  G.  732. 

6  Davis'  Military  Law,  p.  108. 


96  MILITARY  LAW 

may  be  written  or  oral.  The  burden  of  proof  of  sustaining 
it  lies  with  the  accused,  and  he  may  introduce  evidence,  as 
well  as  argument,  to  support  it.  The  prosecution  may 
bring  rebutting  evidence  and  is  entitled  to  a  reply,  all  of 
which  is  entered  on  the  record.1 

185.  III.  Pleas  in  Bar  of  Trial. — A  plea  in  bar  of  trial, 
if  sustained,  is  a  substantial  and  conclusive  answer  to  the 
action  begun,  and  the  accused  must  be  discharged  from 
trial. 

Such  pleas  may  be  made  on  the  ground  of: 
1st.  The  Statute  of  Limitations. 
2d.  A  former  acquittal  or  conviction. 
3d.  Pardon. 

186.  ist.  The  Statute  of  Limitations.— This    statute 
affecting  persons  under  military  jurisdiction  is  contained 
in  the  103d  Article  of  War,  as  follows: 

Article  103. — No  person  shall  be  liable  to  be  tried  and 
punished  by  a  general  court-martial  for  any  offense  which 
I  appears  to  have  been  committed  more  than  two  years 
1  before  the  issuing  of  the  order  for  such  trial,  unless,  by 
reason  of  having  absented  himself,  or  of  some  other  mani- 
fest impediment,  he  shall  not  have  been  amenable  to  jus- 
tice within  that  period.     (Original  Article  103.) 

No  person  shall  be  tried  or  punished  by  a  court-martial 
for  desertion  in  time  of  peace  and  not  in  the  face  of  an 
enemy,  committed  more  than  two  years  before  the  arraign- 
ment of  such  person  for  such  offense,  unless  he  shall 
meanwhile  have  absented  himself  from  the  United  States, 
in  which  case  the  time  of  his  absence  shall  be  excluded 
in  computing  the  period  of  the  limitation:  Provided, 
That  said  limitation  shall  not  begin  until  the  end  of  the 
term  for  which  said  person  was  mustered  into  the  service. 
(Amendment  added  to  original  Article  103.  Act  April 
11,  1890.) 2 

1  Benet,  6th  Ed.,  p.  123. 

2  See  post,  par.  810, 


ARRAIGNMENT— PLEAS  97 

187.  The  provisions  of  this  article,  while  applicable  to 
other  offenses  against  military  law,  do  not  extend  to  the 
offense  of  desertion  "in  time  of  war," l  and  cannot,  there- 
fore, be  successfully  pleaded  in  that  case.     And  the  judg- 
ment of  a  legally  organized  court-martial  convicting  and 
sentencing  a  soldier  for  desertion,   duly  approved  and 
confirmed  by  the  proper  reviewing  authority,  is  not  sub- 
ject to  review  by  a  civil  court,  in  habeas  corpus  proceedings, 
on  the  ground  that  the  prosecution  is  barred  by  limitation 
under  this  article,  such  defense  being  one  to  the  merits,  to 
be  determined  by  the  court-martial,  and  not  affecting  the 
jurisdiction.2    The  plea  is  a  matter  of  defense;  a  statute 
of  limitations  cannot  be  taken  advantage  of  by  demurrer.3 

1 88.  The  General  Statute.— The  first  part  of  the  article 
quoted  above  constitutes  the  general  statute  of  limitations 
in  force  at  the  time  of,  and  prior  to,  the  adoption  of  the 
latter  part  by  the  Act  of  April  11,   1890,  which  refers 
only  to  "desertion  in  time  of  peace"  and  not  in  the  face 
of  the  enemy. 

The  general  statute,  though  modified  by  the  additional 
provision  as  to  "desertion  in  time  of  peace  and  not  in  the 
face  of  an  enemy,"  still  applies-  to  offenses  under  military 
law  except  "desertion  in  time  of  war."  Its  period  of 
limitation  begins  to  run  from  the  date  of  the  commission 
of  the  offense  and  runs  for  two  years  thereafter.  The 
offense  must  have  been  committed  within  "two  years 
before  the  issuing  of  the  order  for  trial,  unless,  by  reason  of 
having  absented  himself,  or  of  some  other  manifest  impedi- 
ment," the  accused  has  not  been  amenable  to  justice 
within  that  period;  and  it  has  been  held  that  "the  order 
for  trial"  within  the  meaning  of  this  Article  is  the  "refer- 

1  Cir.  18,  War  Dept.,  1905;    Cir.  29,  War  Dept.,  1906;    Ex   parte 
Townsend,  133  Fed.  Rep.  76. 

2  See  Ex  parte  Townsend,  133  Fed.  Rep.  74;  In  re  Zimmerman,  30 
Fed.  Rep.  176;  In  re  Davison,  21  Fed.  Rep.  618;  In  re  White,  17  Fed. 
Rep.  723. 

3  U.  S.  v.  Cook,  17  Wall.  (84  U.  S.)  168. 


98  MILITARY  LAW 

ence  of  the  charges  to  the  court  for  trial/'  and  not  the 
order  appointing  the  court.1 

189.  The  " absence"  referred  to  in  the  general  clause  of 
the  article  is  not  necessarily  an  absence  from  the  United 
States  but  an  absence  by  reason  of  "fleeing  from  justice" 
analogous  to  that  specified  in  Sec.  1045,  Revised  Statutes, 
which  has  been  held  to  mean  leaving  one's  home,  resi- 
dence, or  known  place  of    abode  within  the  district,  or 
concealing  one's  self  therein,  with  intent  to  avoid  detec- 
tion or  punishment  for  the  offense  against    the  United 
States.2    In  a  case  other  than  desertion,  it  is  not  essential 
for  the  prosecution  to  be  prepared  to  prove  that  the 
accused  had  been  beyond  the  territorial  jurisdiction  of 
the  United  States  in  order  to  save  the  case  from  the 
operation  of  the  limitation.3 

To  constitute  fleeing  from  justice  it  is  not  necessary 
that  the  alleged  offender  be  found  in  another  jurisdiction.4 
But  any  person  who  takes  himself  out  of  the  jurisdiction, 
with  the  intention  of  avoiding  being  brought  to  justice, 
can  have  no  benefit  of  the  limitation.  It  is  sufficient 
that  there  is  a  flight  with  the  intention  of  avoiding  being 
prosecuted,  whether  a  prosecution  has  or  has  not  been 
actually  begun.5 

190.  The  plea  of  the  statute  of  limitations  does  not 
challenge  the  jurisdiction  of  the  court  to  hear  and  deter- 
mine the  matter,  but  is  a  plea  to  the  merits  of  the  case; 
and  is  a  matter  to  be  determined  by  the  court  in  the 
exercise  of  its  jurisdiction.     The  court-martial  has  final 
determination  of  the  question  and  its    decision  is  not 
reviewable  in  habeas  corpus  proceedings.6 

1  Dig.  Op.  J.  A.  G.  314. 

2  U.  S.  v.  O'Brian,  3  Dill.  (U.  S.)  381;  Fed.  Stat.  Annotated,  Vol.  2, 

E.  360;  Gould  ard  Tucker,  Notes  on  Revised  Statutes,  Vol.  2,  p.  114; 
treep  v.  U.  S.,  160  U.  S.  128. 

3  Dig.  Op.  J.  A.  G.  321. 

4  Porter  v.  U.  S.,  91  Fed.  Rep.  494;  Streep  v.  U.  S.,  160  U.  S.  12-8. 

5  Fed.  Stat.  Annotated,  Vol.  2,  p.  360;  Streep  v.  U.  S.,  160  U.  S.  128. 

6  Ex  parte  Townsend,  133  Fed.  Rep.  74;   In  re  Zimmerman,  30  Fed. 


ARRAIGNMENT— PLEAS  99 

19 1.  The  limitation  does   not  apply   to  courts  of  in- 
quiry,1   nor   to  inferior   courts,    nor   to    the  hearing  of 
complaints  by  regimental  courts  under  the  30th  Article 
of  War.2 

192.  By  a  plea  of  guilty  the  accused  is  assumed  to 
waive  the  right  to  plead  the  limitation  by  a  special  plea 
in  bar.     But  under  a  plea  of  not  guilty,  the  limitation 
may  be  taken  advantage  of  by  evidence  showing  that  it 
has  taken  effect.3 

193.  In  case  of  desertion  in  time  of  peace  and  not  in 
the  face  of  an  enemy  the   statute   begins   to  run  from 
the  expiration  of  the  term  for  which  the   person   was 
mustered  into  the  service,  and  the  arraignment  of  the 
accused  for  the  offense  must  occur  within  two  years  from 
such  date,  unless  he  has  meanwhile  absented  himself  from 
the  United  States,  in  which  case  the  period  of  such  ab- 
sence must  be  deducted.4 

194.  2d.  A  Former  Acquittal  or  Conviction. — The  Con- 
stitution of  the  United  States,  Article  V,  provides  that 
no  person  shall  "be  subject,  for  the  same  offense,  to  be 
twice  put  in  jeopardy  of  life  or  limb,"  and  this  guaran- 
tee is  applied  to  persons  subject  to  military  jurisdiction 
by  the  terms  of  the   102d  Article  of  War,  which  are  as 
follows : 

Article  102. — No  person  shall  be  tried  a  second  time 
for  the  same  offense.5 

"Tried,"  as  here  used,  means  duly  prosecuted  before 
a  legally  organized  and  competent  court-martial  to 
final  conviction  or  acquittal.6  Nothing  short  of  "con- 
Rep.  176;  In  re  Davison,  21  Fed.  Rep.  618;  In  re  White,  17  Fed. 
Rep.  723;  U.  S.  v.  Cook,  84  U.  S.  168. 

1  6  Op.  Attorney-General  239. 

2  Davis'  Military  Law,  p.  536. 

3  Dig.  Op.  J.  A.  G.  320. 

4  See  Tabular  Statement,  next  page. 
6  See  post,  par.  809. 

e  U.  S.  v.  Perez,  9  Wheat.  (22  U.  S.)  579;  U.  S.  v.  Haskell,  4  Wash. 
C.  C.  409;  Dig.  Op.  J.  A.  G.  303. 


100 


MILITARY  LAW 


viction"   or   " acquittal"  will   justify  acceptance  of  the 
plea. 

195.  The  terms  of  this  article,  and  the  right  to  the  plea 
under  it,  apply  only  to  conviction  or  acquittal  by  military 
courts,  and  not  to  acquittal  or  conviction  by  civil  courts. 


Statutes  of 
Limitation    ^ 
in  Military 
Law. 


STATUTES  OF  LIMITATION:  TABULAR  STATEMENT 

1.  Offenses:  Applies  to  all  military 

offenses  triable  by  military 
courts,  except  desertion. 

2.  Courts:    Applies  only   to   trials 

before  general  courts-martial. 

3.  Begins  to  run  at  the  date  of  the 

commission  of  the  offense. 

4.  Runs  two  years. 

5.  Time    excluded:     That    during 

which  he  has  absented  himself 
(such  as  a  "  fleeing  fiom 
justice/'  see  Sec.  1045,  R.  S., 
and  ante,  par.  189),  or  where 
b^  other  manifest  impediment 
he  shall  not  have  been  ame- 
nable to  justice. 

6.  A  defense:    When  pleaded  and 

date  of  the  order  convening  the 
court,  that  is,  the  date  of  the 
reference  of  the  charges  to  the 
court  for  trial  (Dig.  Op.  J.  A.  G. 
314),  is  more  than  two  years 
subsequent  to  the  commission 
of  the  offense. 


1.  The  General 

Statute 
(103d  A.  W.). 


2.  The  Special 
Statute  (Act 
of  April  11,   « 
1890,amend- 
103d  A. 


ing 

W.) 


1.  Offenses:  Applies  only  to  "  deser- 

tion in  time  of  peace  and  not  in 
the  face  of  an  enemy." 

2.  Courts:    Applies  only   to   trials 

before   general  courts-martial. 

3.  Begins  to  run  at  ''the  end  of  the 

term  for  which  said  person  was 
mustered  into  the  service." 

4.  Runs  two  years. 

5.  Time  excluded  i  That  in  which  he 

shall  "have  absented  himself 
from  the  United  States." 

6.  A  defense:    When  pleaded,  and 

the  arraignment  under  the 
charges  is  more  than  two  years 
after  the  date  when  the  statute 
begins  to  run. 


ARRAIGNMENT— PLEAS  101 

Although  there  may  be  two  trials  resulting  from  the  same 
act,  one  before  a  military  court  and  the  other  before  a 
civil  court,  each  is  for  a  separate  and  distinct  offense 
and  not  for  the  "same"  offense,  one  being  committed 
in  violation  of  military  law  and  the  other  of  the  civil 
law.1 

196.  Where  the  accused  has  been  once  duly  convicted 
or  acquitted,  he  has  been  "tried"  in  the  sense  of  this 
Article  and  cannot  be  tried  again,  against  his  will ;  though 
no  action  whatever  has  been  taken  upon  the  proceedings 
by  the  reviewing  authority,  or  though  the  proceedings, 
findings  and  sentence,  if  any,  be  wholly  disapproved  by 
him.     It  is  immaterial  whether  the  former  conviction  or  f 
acquittal  was  approved  or  disapproved.2 

197.  The  accused  must  make  the  plea;  if  he  waives  it 
the  court  will  proceed  with  the  case,  taking  no  notice  of 
it  as  a  bar  to  trial.3 

198.  When  an  officer  or  soldier  has  been  duly  acquitted 
or  convicted  of  a  specific  offense,  he  cannot  afterward, 
against  his  consent,  be  brought  to  trial  for  a  minor  offense 
included  therein,  an  acquittal  or  conviction  of  which  was 
necessarily  involved  in  the  finding  upon  the  original  charge. 
For  example,  desertion  includes  absence  without  leave, 
and  if  wholly  acquitted,  or  if  convicted  of  absence  without 
leave  only,  the  accused  cannot  be  again  brought  to  trial 
for  either  absence  without  leave  or  desertion  committed 
in  and  by  the  same  act.4 

199.  The  converse  of  this  is  also  true;  where^  an  accused 
is  tried  for  a  minor  included  offense  he  cannot  be  tried  for 
the  major  offense,  because  he  would  be  put  in  jeopardy  a 
second  time  for  the  minor  offense  (which  is  included  in  the 
major)  for  which  he  has  already  been  tried.     For  ex- 

1  See  Carter  v.  McClaughry,  183  U.  S.  395. 

2  Dig.  Op.  J.  A.  G.  307. 

3  Ives,  p.  99. 

4  Dig.  Op.  J.  A.  G.  304. 


102  MILITARY  LAW 

ample,  a  soldier  tried  for  "absence  without  leave"  and 
acquitted  or  convicted  cannot  legally  be  brought  to  trial 
for  that  same  absence  on  a  charge  of  desertion;  " absence 
without  leave'7  being  a  necessary  element  of  desertion. 
And  where  any  offense  for  which  an  accused  has  been 
tried  is  an  essential  part  of  another  offense,  which  might 
be  charged  under  a  different  article  of  war,  acquittal  or 
conviction  excludes  a  second  trial  under  the  different 
article. 

200.  New  Trial. — It  has  been  held  that  a  new  trial  on 
the  same  charges  may  be  granted  for  the  benefit  of  the 

t  accused  at  his  own  request,  provided  the  sentence  has  not 

I  been  duly  approved  and  taken  effect.1     After  the  sentence 

has  been  duly  approved  and  taken  effect,  the  granting  of 

a  new  trial  is  beyond  the  power  of  a  military  commander 

or  the  President.2 

For  error  in  excluding  proper  testimony  the  President 
may  order  a  new  trial  by  a  court  composed  of  different 
members,  upon  the  motion  of  the  accused.  The  plea  of 
former  conviction  or  acquittal  is  the  privilege  of  the 
accused  and  may  be  waived.3 

New  trials  have  been  had  only,  and  are  authorized 
only,  when  the  sentence  adjudged  on  the  first  trial  has 
been  disapproved  by  the  reviewing  authority  and  the 
accused  has  asked  for  a  second  trial.4 

201.  $d.  Pardon. — Pardon  is  an  act  of  grace  which  pro- 
ceeds from  the  power  entrusted  with  the  execution  of  the 
laws,  and  exempts  the  individual  on  whom  it  is  bestowed 
from  the  punishment  which  the  law  inflicts  for  a  crime 
that  he  has  committed.5     It  becomes  operative  upon  de- 
livery and  acceptance,  but  may  be  granted  to  take  effect 
upon  some  future  day. 

1  Davis'   Military  Law,  p.   102. 

2  Dig.  Op.  J.  A/G.  1796. 

3  1  Op.  Attorney-General  233. 

4  Dig.  Op.  J.  A.  G.  1796. 

6U.  S.  v.  Wilson,  7  Peters  (32  U.  S.)  160. 


ARRAIGNMENT— PLEAS  103 

202.  A  general  pardon  should  be  taken  judicial  notice  of 
by  the  court,  but  a  special  or  individual  pardon  must  be 
brought  up  by  the  person  pleading  it. 

203.  The  power  to  pardon  may  be  exercised  at  any 
time  after  the  commission  of  the  offense,   either  before 
legal  proceedings  are  taken  or  while  they  are  pending  or 
after  conviction  and  judgment;    and  a  plea  of  pardon 
granted  during  the  trial  would  be  valid.1     The  pardon,  in 
order  to  be  valid,  must  be  granted  by  one  having  legal 
authority  to  grant  it,  and  it  must  be  produced  and  sub- 
mitted to  the  court.     If  it  is  a  general  pardon  to  certain 
classes  of  offenders,  the  accused  must  show  that  he  is  in- 
cluded in  the  classes  mentioned  in  the  pardon  or  amnesty. 
A  constructive  pardon  is  one  where  an  act  of  the  proper! 
military  superior  indicates  a  purpose  to  abandon  or  desist  | 
from  the  prosecution  of  a  particular  offender.     It  will 
ordinarily  be  proved  by  the  testimony  of  witnesses  as  to 
its  source  and  authority,  as  well  as  to  the  extent  and 
terms  of  the  alleged  release.2 

204.  IV.  Pleas  to  the  General  Issue.— All  special  pleas, 
if  any,  being  disposed  of,  and  the  court  still  retaining  juris- 
diction of  the  case,  the  accused  is  called  upon  to  plead  to 
the  charges  and  specifications  as  they  stand.     This  final 
plea  is  known  as  "the  plea  to  the  general  is'sue." 

This  is  usually  by  a  plea  of  " guilty"  or  "not  guilty"  to 
the  specifications   under  each   charge  and  then   to  the 
charge  itself.    The  plea  may  except  parts  of  the  specifica- 
tion or  certain  words,  substituting  others  therefor;    but 
every  part  of  each  specification  must  be  covered  by  the 
plea.    The  accused  may  plead  guilty  of  the  specification^ 
and  not  guilty  of  the  charge,  but  a  plea  of  not  guilty  of  i 
the  specification  and  guilty  of  the  charge  would  be  inad- 
missible, for  the  truth  of  the  specification  is  necessary  to 
sustain  the  charge. 

1  Ex  parte  Garland,  4  Wall  (71  U.  S.)  334. 

2  Davis'  Military  Law,  p.  107. 


104  MILITARY  LAW 

205.  A  plea  of  "guilty  without  criminality"  is  inconsis- 
tent, because  " guilt"  implies  criminality.     Such  a  plea  is, 
therefore,  practically  a  plea  of  "not  guilty"  and  should 
be  so  considered  by  the  court,  and  evidence  mast  be  taken 
to  sustain  the  charge. 

The  accused  making  such  a  plea  should  be  instructed 
as  to  the  actual  effect  thereof,  and  informed  that  he  has 
the  privilege  of  pleading  guilty  to  parts  of  the  specification 
and  not  guilty  to  other  parts,  and  that  after  the  pleas  are 
disposed  of,  he  may  make  such  admissions  as  he  may  deem 
proper. 

206.  A  plea  of  "guilty"  admits  the  jurisdiction  of  the 
court  and  waives  any  defect  in  the  form  of  the  charges 
and  specifications ;  in  civil  courts  no  testimony  is  usually 
introduced  after  such  a  plea,  but  in  military  courts  it  does 
not  necessarily  prevent  the  admission  of  evidence,    in 
fact  it  is  required,  where  it  is  necessary  for  a  proper  under- 
standing of  the  facts  and  of  the  degree  of  criminality  of 
the  accused,  that  it  shall  be  introduced,  even  if  opposed  by 
the  accused.     But,   if  introduced,    the   accused  has   the 
right  to  introduce  evidence  in  rebuttal l  and  to   cross- 
examine  witnesses,  or  to  offer  evidence  as  to  character; 
and  he  may  address  the  court  in  extenuation  of  the  offense 
or  in  mitigation  of  the  punishment.2 

Where,  however,  the  court  is  illegally  constituted  or 
is  without  jurisdiction  in  the  case,  the  question  of  jurisdic- 
tion cannot  be  waived  and  jurisdiction  thus  conferred  upon 
a  court  not  otherwise  possessing  it. 

207.  Change  of  Plea.  —The  court  may,  in  its  discre- 
tion, permit  the  accused  to  withdraw  a  plea  of  "not  guilty" 
and  substitute  a  plea  of  "guilty,"  or  vice  versa,  or  to  sub- 
stitute for  either  of  these  general  pleas  a  special  plea, 
provided  the  application  therefor  is  made  in  good  faith 

1  Dig.  Op.  J.  A.  G.  994,  1002,  1988,  1993. 

2  Court-martial  Manual,  p.  32. 


ARRAIGNMENT— PLEAS  105 

and  not  for  the  purpose  of  delay,  and  that  to  grant  it  will 
not  result  in  unreasonably  protracting  the  investigation.1 

208.  Statement  Inconsistent  with  the  Plea.— A  state- 
ment, after  a  plea  of  guilty,  which  contradicts  this  plea 
is  substantially  a   withdrawal   of  the   plea.     Where  an 
accused,  after  a  plea  of  guilty,  makes  a  statement  incon- 
sistent with  the  plea,  the  court  will  advise  the  accused 
to  plead  not  guilty,  and  may  direct  such  a  plea  to  be 
entered,  and  proceed  to  trial  and  investigation  of  the  case 
on  its  merits,  the  judge-advocate  introducing  the  proof 
precisely  as  under  the  plea  of  "not  guilty."2 

209.  Standing  Mute.— The  89th  Article  of  War  pro- 
vides as  follows: 

Article  89. — When  a  prisoner,  arraigned  before  a  gen- 
eral court-martial,  from  obstinacy  and  deliberate  design, 
stands  mute  or  answers  foreign  to  the  purpose,  the  court 
may  proceed  to  trial  and  judgment  as  if  the  prisoner  had 
pleaded  not  guilty. 

A  prisoner  may,  however,  stand  mute  or  answer  foreign 
to  the  purpose  from  other  causes  than  obstinacy  and 
deliberate  design,  as  in  case  of: 

a.  Visitation  of  God. 

b.  Lack  of  intellectual  capacity  to  understand  the  pro- 
ceedings  sufficiently  to   enable  him  to  make  a  proper 
plea  or  to  properly  defend  himself. 

In  either  of  these  cases  it  is  the  duty  of  the  court  to 
investigate  and  determine  the  nature  and  extent  of  the 
disability.3 

If  the  investigation  shows  disability  to  exist,  the  court 
should  suspend  its  labors  and  report  the  facts  to  the 
convening  authority  for  his  instructions  in  the  case. 

1  Davis1  Military  Law,  p.  115. 

2  Dig.  Op.  J.  A.  G.  1990. 

3  Davis'  Military  Law>  p.  118;    Ives'  Military  Law,  p.  Ill:    Ben^t 
p.  108;   Winthrop,  Vol.  1,  p.  328. 


106  MILITARY  LAW 

210.  Nolle  Prosequi. — Nolle  prosequi  is  the  formal  decla- 
ration of  the  prosecuting  officer  that  he  will  no  further 
prosecute   the   case,   either  as  a  whole   or   as   to   some 
of   the   counts    of   the   accusation.     In  the  civil  courts 
after  a  jury  has  been  impanelled  a  nolle  prosequi  cannot 
be  entered  without  the  consent  of  the  defendant,  even 
with  the  consent  of  the  judge;   if  the  hearing  is  stopped 
by  withdrawing  a  juror,  the  effect  is  an  acquittal  and 
the  defendant  is  entitled  to  a  verdict  of  not  guilty;1  and 
in  court-martial  cases  where  the  court  has  been  duly  or- 
ganized and  sworn,  the  accused  arraigned  and  his  plea 
entered,   the   court   is   fully   in   possession   of   the   case, 
and  the  accused  is  in  general  entitled  to  have  the  trial 
carried  forward  to  acquittal  or  conviction.2 

211.  As   the   prosecution  before  a   court-martial   pro- 
ceeds in  the  name  and  by  authority  of  the  government, 
the  United  States,  through  the  Secretary  of  War,  or  the 
military  commander  who  has  convened  the  court,  may 
require  or  authorize  the  judge-advocate  to  enter  a  nolle 
prosequi  in  a  case  on  trial  (or  less  technically  to  with- 
draw or  discontinue  the  prosecution)  either  as  to  all  the 
charges  where  there  are  several,  or  as  to  any  particular 
charge  or  specification.     But  the  judge-advocate  cannot 
exercise  this  authority  at  his  own  discretion,  nor  can  the 
court  direct  it  to  be  exercised.3 

1  Bishop's  New  Cr.  Law,  Vol.  1,  Sec.' 1016. 

2  Davis'  Military  Law,  p.  118. 

3  Dig.  Op.  J.  A.  G.  1797. 


CHAPTER  XV 

ATTENDANCE  OF  WITNESSES— WRIT  OF  ATTACH- 
MENT—HABEAS  CORPUS 

212.  The  judge-advocate  of  a  court-martial  is  author- 
ized  by  law  (Sec.  1202,  R.  S.)  to  issue  like  process  to 
compel  witnesses  to  appear  and  testify,  as  may  lawfully 
issue  from  the  courts  of  criminal  jurisdiction  within  the 
State,   Territory,    or   District   where   such   court-martial 
shall  be  ordered  to  sit.     Witnesses  for  both  prosecution 
and  defense  are  subpoenaed  by  the  judge-advocate,  and 
the  accused  must,  therefore,  furnish  his  list  of  witnesses 
to  him  in  time  for  them  to  be  subpoenaed  and  appear 
at  the  time  and  place  of  trial.     The  judge-advocate  will 
summon  only  necessary  witnesses,  and  unless  he  is  sat- 
isfied that  their  testimony  is  necessary  and  material  will 
not  summon  any  witness  at  the  expense  of  the  govern- 
ment.1    If  he  declines  to  subpoena  a  witness  declared  by 
the  accused  to  be  material  and  necessary  for  his  defense, 
the  question  will  be  submitted  to  the  court  and,  if  it 
so  decides,  the  witness  will  be  supcenaed  by  its  order. 

213.  Subpoenas  may  be  served  by  any  person  compe- 
tent to  make  oath  to  the  service;2    the  service  must  be 

1  A.  R.  956. 

2  Subpoenas  should  ordinarily  be  served  by  persons  in  the  military 
service,  but  they  may  be  served  by  civilians  when  service  by  persons 
in  the  military  service  is  impracticable  or  less  economical.      Where 
service  is  made  by  a  civilian,  he  is  entitled  to  a  reasonable  compensa- 
tion therefor,  and  his  accounts  will  be  sent  to  The  Military  Secretary 
of  the  Army  with  a  view  to  payment.     (Cir.  42,  War  Dept.,  1906.) 

107 


108  MILITARY  LAW 

personal.  Judge-advocates  of  courts-martial  must,  when- 
ever it  is  possible,  send  their  subpoenas  through  military 
channels.1  In  the  case  of  military  persons  the  summons  2 
sent  through  proper  channels  is  sufficient  to  procure 
attendance.  If  at  the  post  where  the  court  convenes,  it 
is  transmitted  through  the  post  commander.  If  the  per- 
son summoned  is  at  any  other  post  than  that  at  which 
the  court  is  sitting,  the  department  commander  will  be 
requested  to  order  the  witness  to  attend,  or  the  witness 
will  apply  to  his  proper  superior  for  necessary  orders  or 
authority  to  obey  the  summons.3  As  he  is  subject  to 
military  authority  he  is  not  entitled  to  fees  or  mileage 
other  than  that  provided  by  law  for  persons  in  the  ser- 
vice travelling  on  duty  under  orders,  the  order  stating 
that  such  travel  is  necessary  for  the  public  service. 

214.  Civilian  Witness. — In  the  case  of  a  civilian  witness 
the  subpoena  must  be  made  out  in  duplicate  4  and  personal 
service  made  by  delivery  to  the  witness  of  one  of  these 
subpoenas,  the  other  being  retained  by  the  person  serving 
the  subpoena,  who  endorses  it  with  his  certificate  of  service, 
showing  the  date  and  place  thereof,  and  his  affidavit  to 
the  truth  of  his  certificate,  made  before  an  officer  authorized 
to  administer  oaths  for  general  purposes,  and  returns  it  to 
the  judge-advocate. 

215.  A  civilian  witness  in  the  employ  of  the  govern- 
ment duly  subpoenaed  to  appear  before  a  court-martial  is 
entitled  to  transportation  in  kind  from  his  place  of  resi- 
dence to  the  place  of  meeting  of  the  court  and  return,  or, 
if  that  is  not  furnished,  to  a  reimbursement  of  the  cost  of 
travel.5 

1  A.  R.  957. 

2  See  Form,  Appendix  E,  11. 

8  A.  R.  958;  Court-martial  Manual,  p.  37. 

4  See  Form,  Appendix  E,  12. 

6  This  reimbursement  consists  of  the  cost  of  travel,  by  the  shortest 
usually  travelled  route,  including  transfers  at  not  more  than  fifty  cents 
each,  and  double  berth  in  sleeping-car  or  steamer,  and  also  cost  of 


ATTENDANCE  OF  WITNESSES  109 

A  civilian  not  in  the  employ  of  the  government  duly  sum- 
moned to  appear  before  a  court-martial  is  paid  by  the 
Pay  Department.1 

216.  Compensation  to  civilians,  in  or  out  of  government 
employ,   for  attendance  as  witnesses  at  civil  courts  is 
payable  by  the  civil  authorities.2 

217.  The  fees  of  civilian  witnesses,  and  the  mileage  of 
witnesses  and  fees  of  civil  officers  taking  depositions,  are 
paid  by  the  Pay  Department.3 

218.  When  a  civilian  witness,  duly  subpoenaed  to  appear 
before  a  court-martial,  refuses  to  appear  or  qualify  as  a 
witness,  or  to  testify  or  to  produce  documentary  evidence, 
as  required  by  law,  he  will  at  once  be  tendered  or  paid 
by  the  nearest  paymaster  one  day's  fee  and  mileage  for 
the  journeys  to  and  from  the  court,  and  will  thereupon 
be  again  called  upon  to  comply  with  the  requirements  of 

meals  not  exceeding  $3.00  for  each  day  actually  and  unavoidably  con- 
sumed in  travel  or  in  attendance  upon  the  court,  in  cases  where  the 
court  is  sitting  at  a  place  which  requires  them  to  leave  their  stations. 
(A.  R.  998.) 

1  Such  witness  will  receive  $1.50  per  day  for  each  day  actually  in 
attendance  upon  the  court,  and  5  cents  per  mile  for  going  from  his 
place  of  residence  to  the  place  of  trial  or  hearing,  and  5  cents  per  mile 
for  returning;    but  in  Wyoming,  Montana, -Washington,  Oregon,  Cali- 
fornia, Utah,  New  Mexico,  Arizona,  and  Porto  Rico  he  will  be  paid 
15  cents  for  each  mile  necessarily  travelled  over  any  stage  line  or  by 
private  conveyance,  and  in  Porto  Rico  10  cents  for  each  mile  over  any 
railway,  in  such  travel.     (A.  R.  999.) 

2  A.  R.  1003. 

3  The  charges  for  return  journeys  of  witnesses  are  based  upon  those 
allowed  for  travel  to  the  court,  and  the  whole  amount  due  a  witness  is 
paid  him  upon  his  discharge  from  attendance  without  waiting  for  com- 
pletion of  the  return  journey.     (A.  R.  1001.) 

The  items  of  expenditure  authorized  are  set  forth  in  detail  as  part 
of  the  voucher  for  reimbursement,  and  their  correctness  attested  by  the 
affidavit  of  the  witness,  made,  when  practicable,  before  the  judge- 
advocate.  The  certificate  of  the  judge-advocate  will  be  evidence  of 
the  fact  and  period  of  attendance  of  the  witness,  and  this  must  be 
made  upon  the  voucher.  (A.  R.  1002.)  The  voucher  must  also  be 
accompanied  by  the  original  summons  or  a  certified  copy  thereof.  If 
there  is  no  paymaster  present  at  the  place  where  the  court  sits,  the 
account  thus  prepared  and  authenticated  may  be  transmitted  to  any 
paymaster  for  payment.  Blank  accounts  for  civilian  witnesses  may 
be  secured  from  the  Paymaster-General  or  any  army  paymaster. 


110  MILITARY  LAW 

the  law.1  But  the  fees  and  mileage  of  a  civilian  witness 
residing  outside  the  State,  Territory,  or  District  where 
the  court  is  held  will  not  be  paid  in  advance,  as  such 
witness  cannot  be  punished  for  refusal  to  obey  the  sum- 
mons.2 

219.  An  officer  charged  with  serving  a  subpoena  may 
pay  fees  and  mileage  to  a  witness  upon  whom  he  serves 
it,  taking  a  receipt  therefor,  and  be  reimbursed  the  amount 
of  the  payment.3 

220.  Where  a  witness  resides  outside  the  State,  Territory, 
or  District  in  which  the  court-martial  sits,  he  may  be 
subpoenaed,  but  cannot  be  compelled  to  attend;   nor  can 
he  be  punished  for  neglect  or  refusal  to  appear  and  qualify 
or  testify  under  the  provisions  of  the  Act  of  March  2,  1902. 
But  if  he  is  subpoenaed  and  does  attend,  he  will  be  paid 
his  fees  and  mileage  as  provided  for  other  witnesses.     In 
cases  where  he  does  not  attend  his  evidence  may  be  taken 
by  deposition.4    But  the  attendance  of  a  witness  residing 
"within  the  State,  Territory,  or  District"  may  be  secured 
through  the  warrant  of  attachment  issued  by  the  judge- 
advocate. 

221.  Writ  of  Attachment. — When  a  witness  residing 
within  the  State,  Territory,  or  District  in  which  the  court 
sits,   who  has  been  duly  subpoenaed  and  tendered  his 
mileage  and  at  least  one  day's  fees,  neglects  or  refuses  to 
appear  before  the  court,  the  judge-advocate  may  issue 
like  process  to  compel  such  witness  to  appear  and  testify, 
which  courts  of  criminal  jurisdiction  within  the  State, 
Territory,  or  District  where  the  court  sits,  may  lawfully 
issue.5 

1  A.  R.  1000;  For  provision  for  the  punishment  of  a  witness  who 
refuses  to  comply  with  the  requirements  of  the  law,  see  ante,  par.  72. 

2  A.  R.  1000. 

3Cir.  38,  H.  Q.  A.,  1901. 

4  See  Deposition,  par.  251,  post,  et  seq. 

5  Sec.  1202,  Revised  Statutes.     This  process  is  the  writ  or  warrant 
of  attachment,  and  through  it  the  witness  may  be  brought  before 


WRIT   OF   ATTACHMENT  111 

222.  When  this  process  is  issued  to  compel  the  attend- 
ance as  witnesses  of  persons  not  in  the  military  service, 
but  residing  in  the  State,  Territory,  or  District  in  which 
the  court  sits,  the  judge-advocate  will  formally  direct  the 
same  to  an  officer  designated  by  the  department  commander 
to  execute  it,  and  the  nearest  military  commander  will 
furnish  the  necessary  military  force  for  the  execution  of 
the  process,  if  force  be  required.1     The  officer  designated  to 
execute  the  process  should  also  be  furnished  with  the  order 
convening  the  court,  or  a  certified  copy  thereof,  and  with 
the  original  subpoena  with  the  affidavit  of  service  thereon. 
This  subpoena  is  returned  when  the  attachment  is  executed. 

223.  In  the  Philippine  Islands. — "Every  person  not 
belonging  to  the  Army  of  the  United  States,  who,  in 
the  Philippine  Islands,  being  duly  subpoenaed  to  appear 
therein  as  a  witness  before  a  general  court-martial  of  said 
Army,  wilfully  neglects  or  refuses  to  appear,  or  refuses 
to  qualify  as  a  witness  or  to  testify  or  produce  docu- 
mentary evidence  which  such  person  may  have  been  legally 
subpoenaed  to  produce,  shall  be  punished  by  a  fine  of 
not  more  than  five  hundred  dollars,  United  States  currency, 
or  imprisonment  not  to  exceed  six  months,  or  both,  at 

the  court-martial,  such  force  only  being  used  as  may  be  necessary  to 
bring  him.     The  writ  is  headed  by  the  name  of  the  case,  "United  States 

v. ,"  is  directed  to  the  person  who  is  to  serve  it  by  the  words  "The 

President  of  the  United  States  to  —  — ,  Greeting,"  and  states  that, 
whereas  the  witness  (naming  him)  has  been  duly  subpoenaed  to  appear 
before  a  general  court-martial  convened  by  orders  from  legal  authority 
to  convene  such  court  (giving  the  number  and  date  of  the  order  and 
the  headquarters  from  which  issued)  on  behalf  of  one  of  the  parties  in 
the  case  (stating  which  one)  and  that  he  has  failed  to  appear  and 
attend  to  testify  as  required  by  said  subpoena,  before  said  general 
court-martial,  and  that  he  is  a  necessary  and  material  witness  in  the 
case,  therefore,  the  judge-advocate  by  virtue  of  the  power  vested  in  him 
by  Section  1202,  Revised  Statutes  of  the  United  States,  commands  and 
empowers  said  person  named  in  the  warrant  to  apprehend  and  attach 
said  witness  (naming  him)  wherever  he  may  be  found,  and  to  bring 
him  before  the  court  to  testify  as  required  by  said  subpoena.  The 
judge-advocate  dates  and  signs  the  writ  as  judge-advocate  of  the  court- 
martial.  (See  Form,  Appendix  E,  16.) 
1  A.  R.  959. 


112  MILITARY  LAW 

the  discretion  of  the  court,  and  it  shall  be  the  duty  of  the 
proper  fiscal  or  prosecuting  officer,  on  the  certification  of 
the  facts  to  him  by  the  general  court-martial,  to  file  in  the 
proper  court  a  complaint  against  and  prosecute  the  person 
so  offending:  Provided,  That  one  dollar  and  fifty  cents, 
United  States  currency,  for  each  day's  attendance,  and 
five  cents,  United  States  currency,  per  mile  for  going 
from  his  place  of  residence  to  the  place  of  trial  or  hearing 
and  five  cents  per  mile  for  returning,  shall  be  duly  tendered 
to  said  witness:  Provided  further,  That  no  witness  shall 
be  compelled  to  incriminate  himself  or  to  answer  any 
question  which  may  tend  to  incriminate  him."1 

224.  Employees  of  the  civil  government  of  the  Philip- 
pine Islands,  paid  from  insular  funds  of  the  islands,  are 
held  not  to  be  in  the  employ  of  the  United  States.2 

HABEAS   CORPUS 

225.  Return  to  Writ  of  Habeas  Corpus  for  Witness 
Held. — An  officer  holding  a  civilian  witness  under  a  war- 
rant of  attachment  which  he  has  been  ordered  to  execute 
may  be  served  with  a  writ  of  habeas  corpus  from  a  civil 
court  alleging  illegal  restraint  of  said  witness  and  direct- 
ing him  to  appear  and  produce  the  body  of  the  witness 
before  that  court. 

226.  If  the  writ  issues  from  a  United  States  court  or 
judge,   it   should  be   promptly   obeyed,   and   the   officer 
must  present  himself  with  the  person  he  is  holding  before 
the  court,  and  there  make  return  to  the  writ,  stating 
the  authority  under  which  he  holds  the  witness,  and  his 
reasons  for  so  holding  him,  at  the  same  time  exhibiting 
his  warrant  of  attachment  and  the  documents  furnished 
therewith. 

1  Court-martial  Manual,  p.  37,  38;   Act  Philippine  Commission  (No. 
1130),  1904;  Cir.  45,  A.  G.  O.,  1902. 

2  Court-martial  Manual,  p.  37;  Cir.  45,  A.  G.  O.,  1902;  see  Appen- 
dix E,  23. 


HABEAS  CORPUS  113 

227.  If  the  writ  of  habeas  corpus  is  issued  by  a  State 
court1    or   judge  for  a  civilian  held  by  an  army  officer 
under  writ  of  attachment,  the  officer  will  not  produce 
the  body  of  the  witness  held  to  be  illegally  restrained, 
but  will  make  a  respectful  return  to  the  writ,  setting  forth 
fully  the  authority  by  which  he  holds  the  person  and 
allege  that  State  authority  is  without  jurisdiction  to  issue 
the  writ  of  habeas  corpus,  and  ask  to  have  the  writ  dis- 
missed.    He  will  also  exhibit  to  the  court  or  officer  issuing 
the  writ  of  habeas  corpus,  the  warrant  of  attachment  and 
the  subpoena,  with  proof  of  service  thereof,   on  which 
the  warrant  of  attachment  was  based,  and  also  a  certi- 
fied copy  of  the  order  convening  the  court-martial  before 
which  he  had  been  commanded  to  take  the  person.2 

228.  Habeas  Corpus  for  Enlisted  Men  or  General 
Prisoners. — If  the  writ  of  habeas  corpus  issued  by  a  United 
States  court  or  judge  be  served  upon  an  officer  requiring 
him  to  produce  the  body  of  an  enlisted  man  or  general 
prisoner  before  such  court  or  judge,  it  must  be  promptly 
obeyed,  and  the  officer  must  appear  before  the  court,  with 
the  person  named,  at  the  time  and  place  indicated  in  the 
writ,  and  make  return  thereto  by  stating  the  fact  of 
enlistment,  or  the  authority  by  which  the  general  prisoner 
is  held,  setting  forth  fully  therein  the  reasons  for  his 
restraint.     He  reports  the  fact  of  such  service  by  tele- 
graph direct  to  The  Military  Secretary  of  the  Army  and 
the  commanding  general  of  the  department.3 

Should  the  court  order  the  discharge  of  the  party,  the 
officer  making  the  return,  or  his  counsel,  should  give 
notice  of  an  appeal  pending  instructions  from  the  War 
Department,  and  he  will  report  to  The  Military  Secre- 
tary the  action  taken  by  the  court  and  forward  a 

1  See  Appendix  E,  24. 

2  A.  R.  1006. 

3  A.  R.  1008. 


114  MILITARY  LAW 

copy  of  the  opinion  of  the  court  as  soon  as  it  can  be 
obtained.1 

229.  If  the  writ  issue  from  a   State  court  or  judge, 
the  officer  must  decline  to  produce  in  court  the  body  of 
the  person  named  in  the  writ,  but  will  make  a  respect- 
ful return  in  writing,  stating  that  the  person  held  is  a 
duly  enlisted  soldier  in  the  service  of  the  United  States, 
or  a  general  prisoner  under  sentence  of  court-martial, 
as  the  case  may  be,  and  is,  therefore,  held  under  color 
of  authority  of  the  United  States,  and  that  the  Supreme 
Court  of   the  United  States  has   decided  that  a  magis- 
trate or   court  of  a  State  has  no  jurisdiction  in  such  -a 
case.2 

A  minor  under  the  age  of  18  years,  who  unlawfully 
enlists  without  the  consent  of  his  parent  or  guardian, 
cannot  be  discharged  from  the  service  on  writ  of  habeas 
corpus  sued  out  by  such  parent  or  guardian,  so  long  as 
he  is  under  arrest  and  being  held  on  any  charge  cog- 
nizable by  a  military  court,  nor  until  he  has  been  dis- 
charged from  such  custody,  or  has  served  the  sentence 
imposed  on  him  by  the  military  tribunal.3 

IN   THE   PHILIPPINES 

230.  No  writ  of  habeas  corpus  shall  be  issued  against  a 
military  officer  or  soldier  who  is  detaining  a  prisoner  in 
any  unorganized  province  or  territory  of  the  Philippine 
Islands. 

It  shall  be  a  conclusive  answer  to  a  writ  of  habeas  cor- 
pus against  a  military  officer  or  soldier,  and  a  sufficient 

1  G.  O.  127,  H.  Q.  A.,  A.  G.  O.,  1900. 

2  A.  R.  1007. 

3  In  re  Scott,  144  Fed.  Rep.  79;  U.  S.  v.  Reaves,  126  Fed.  Rep.  127; 
In  re  Morrissey,  137  U.  S.  157. 

For  forms  and  instructions  as  to  returns  to  writs  of  habeas  corpus 
and  as  to  authorities,  see  Appendix  E,  23-26,  and  G.  O.  127,  H.  Q.  A., 
A  G.  O.,  October  8,  1900;  post,  Chapter  XXXI,  Article  3,  par.  710, 
"Minors." 


HABEAS  CORPUS  115 

excuse  for  not  producing  the  prisoner  in  all  organized 
provinces  of  the  Philippine  Islands,  if  the  commanding 
general  or  any  general  officer  in  command  of  the  depart- 
ment or  district  shall  certify  that  the  prisoner  is  held 
by  him  either : 

a.  As  a  prisoner  of  war; 

b.  As  a   member   of  the  Army,   a   civilian   employee 
thereof,  or  a  camp-follower  and  subject  to  its  discipline; 
but   this   paragraph   shall   not   apply   to   pending  cases 
(October  1,  1901);   or 

c.  As  a   prisoner   committed   by  a   military   court   or 
commission  prior  to  October  1,  1901;    or 

d.  As  a  prisoner  arrested  and  held  for  trial  before  a 
military  court  or  commission  before  October  15,   1901, 
for  a  violation  of  the  laws  of  war  committed  before  the 
same  date;  or 

e.  As  a  prisoner  guilty  of  violations  of  the  laws  of  war 
committed  in  an  unpacified  province  or  territory,  and 
who  has  escaped  into  provinces  officially  declared  to  be 
under  civil  control  and  has  been  captured  by  military 
authorities  and  is  held  for  trial  for  such  violations  of  the 
laws  of  war. 

231.  Respectful  return  in  writing  will  be  made  in  the 
case  of  prisoners  who  may  be  exempted  from  jurisdiction 
by  the  provisions  of  the  acts  above  cited,  stating  the 
facts  of  the  case,  but  the  body  of  the  prisoner  will  not 
be  produced.  In  all  other  cases  the  return  will  be  made 
and  the  body  produced  before  the  proper  tribunal.1 

1  Court-martial  Manual,  p.  71;  Acts  of  Philippine  Commission,  Octo- 
ber 1,  1901,  and  June  23,  1902. 


CHAPTER  XVI 
INTRODUCTION  OF  EVIDENCE— DEPOSITIONS 

232.  Introduction  of  Evidence. — All  other  pleas  having 
been  disposed  of  and  the  plea  of /'not  guilty"  having 
been  entered  to  all  or  any  part  of  the  charges  and  specifi- 
cations,   the  judge-advocate   prepares   to   introduce   the 
witnesses  for  the  prosecution.     He  may,  if  he  desires, 
precede  their  introduction  by  a  statement  of  the  case, 
restricted  to  the  facts  contained  in  the  charges,  and  his 
proposed  plan  of  introduction  of  the  evidence,  but  not 
using  this  privilege  to  prejudice  the  court  against  the 
accused;  and  this  statement  should  appear  in  full  on  the 
record.     This  method  of  opening  the  case  is,  however, 
seldom  used  except  in  the  most  important  cases  before 
military  courts. 

233.  During  the  examination  of  a  witness  all  other 
witnesses  are,  as  a  rule,  excluded  from  the  room,  but  the 
fact  that  a  witness  is  called  who  has  heard  all  or  part  of 
the  evidence  does  not  render  him  incompetent  to  testify, 
although  it  may  affect  his  credibility.     In  case  of  a  prose- 
cuting  witness,  who  is  also  the  accuser,  he  should  be  first 
examined  and  then  may  remain  and,  as  accuser,  assist 
the  judge-advocate  in  conducting  the  prosecution.     The 
judge-advocate  or  any  member  of  the  court  may  testify 
for  either  side  if  called,  without  affecting  the  validity  of 
the   proceedings.1    When   the   judge-advocate   is    called 

1  Dig.  Op.  J.  A.  G.  1667. 

116 


INTRODUCTION  OF  EVIDENCE  117 

upon  to  testify  the  oath,  taken  by  all  witnesses  (Article 
92),  is  administered  to  him  by  the  president  of  the  court. 

234.  Experts. — A  witness   who   is    an    " expert"    and 
whose   testimony,  being  in  the  nature  of   an  opinion,  is 
or   may  be  based  upon  that  of  other  witnesses,  may  be 
permitted  to  hear  their  evidence.1     When  occasion  arises 
for  the  employment  of  an  expert  witness  in  a  trial  before 
a  general  court-martial,  the  necessity  for  such  employment 
should  be  made  to  appear  by  a  resolution  of  the  court, 
and  the  request  for  authority  to  employ,  showing  the 
cost  of  the  services,  will  be  submitted  to  the  Secretary 
of  War  for  approval  in  advance  of  the  employment.2 

235.  Credibility  of  Witnesses. — The  credibility    of   a 
witness  is  his  worthiness  of  belief,  and  this  is  determined, 
in  civil  cases,  by  the  jury  from  his  manner   of  giving 
testimony;  his  interest  in  the  case,  if  any;  by  comparison 
of  his  testimony  with  that  of  others;    and  then  giving 
proper  weight  to  his  evidence. 

Courts-martial,  legally  exercising  the  functions  which 
are  performed  separately  by  the  judge  and  jury  in  civil 
cases,  determine  questions  of  both  competency  and  credi- 
bility. 

236.  Competency  of  Witnesses. — The  competency  of  a 
witness  is  his  legal  ability  to  testify,  and  being  a  question 
of  law  is  determined,  in  any  particular  case,  in  civil  courts 
by  the  judge;  in  courts-martial  by  the  court  itself.     Any 
objection  to  the  competency  of  a  witness  should  be  made 
before  he  is  sworn  and  the  question  determined  by  the 
court  before  he  is  permitted  to  testify.     The  objection  to 
the  competency  of  a  witness  should  be  made  before  exami- 
nation, if  known,  but  it  may  be  made  in  the  course  of  the 
examination  if  only  then  discovered,  and  provided  it  is 
made  as  soon  as  it  becomes  apparent;  it  cannot  be  made 

1  Davis'  Military  Law,  p.  120. 

2  Cir.  30,  War  Department,  1904. 


118  MILITARY  LAW 

after  the  witness  has  left  the  stand.1  There  are  several 
grounds  of  incompetency  at  common  law  which  justify 
objection,  such  as  want  of  understanding,  want  of  religious 
belief,  infamy,  etc.2 

237.  The  incompetency  of  the  witness  may  be  established 
by  the  testimony  of  other  witnesses,  or  by  putting  him  on 
his  voir  dire.     In  putting  him  on  his  voir  dire  the  party 
doing  so  accepts  him  as  a  credible  witness  and  the  general 
rule  of  the  authorities  is  that  where  the  objecting  party 
has  done  this  he  cannot  afterward  resort  to  the  other 
method;  though  it  would  not  preclude  resort  to  the  other 
mode  to  prove  incompetency  on  another  ground.3     This 
oath,  administered  by  the  judge-advocate,  is  as  follows: 
"You  swear  that  you  will  true  answers  make  to  ques- 
tions touching  your  competency  as  a  witness  in  this  case. 
So  help  you  God." 

The  questions  as  to  his  competency  asked  by  the  party 
controverting  it,  those  of  the  judge-advocate  and  of  the 
court,  if  any,  being  answered,  the  court  determines  there- 
from the  competency  or  incompetency  of  the  witness. 
The  entire  proceedings,  including  the  questions  and  answers 
and  decisions  of  the  court,  should  appear  in  full  in  the 
record. 

238.  Examination  of  Witnesses. — Courts-martial  follow 
the  common  law  rules  of  evidence  as  applied  by  U.  S.  courts 
in  the  trial  of  criminal  cases,4  but  they  are  not  strictly 
bound  thereby  and  may  permit  the  introduction  of  evidence 
necessary  to  show  the  entire  facts  in  the  case,  subject  to 
the  law  providing  that  no  witness  shall  be  compelled  to 
incriminate  himself  or  to  answer  any  question  which  may 
tend  to  incriminate  or  degrade  him.5    There  being  no 

1  Am.  and  Eng.  Encyc.  of  Law,  2d  Ed.,  Vol.  30,  p.  970. 

2  See  Evidence,  post,  par.  547  et  seq. 

3  Davis'  Military  Law,  p.  261. 

4  See  post,  par.  549. 

5  Act  March  2,  1901. 


INTRODUCTION  OF  EVIDENCE  119 

objection  to  the  witness,  or,  if  objected  to,  his  competency 
being  sustained  by  the  court,  the  judge-advocate  adminis- 
ters to  him  the  following  prescribed  oath:  "You  swear 
(or  affirm)  that  the  evidence  you  shall  give,  in  the  case 
now  in  hearing,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth.  So  help  you  God."  1  The  attesta- 
tion, or  act  which  makes  the  oath  binding,  may  be  in  any 
form  declared  by  the  witness  to  be  binding  on  his  con- 
science.2 

239.  During  the  administration  of  the  oath  the  judge- 
advocate  and  the  witness  stand,  both  uncovered,  the  latter 
raising  his  ungloved  right  hand  during  it  and  signifying 
his  assent  at  the  close  by  the  words,  "I  do  "  or  "I  do,  so  help 
me  God,"  or,  if  he  remains  silent,  his  assent  is  understood. 
His  name,  rank,  and  regiment  or  corps,  are  then  entered 
on  the  record,  and  he  is  first  asked  whether  he  knows 
the  accused,  or  some  question  which  will  identify  the  latter 
in  connection  with  the  charges  in  the  case.     The  questions 
of  the  judge-advocate   then   follow   in  an  orderly  and 
methodical  series  intended  to  develop  all  the  facts  and 

'circumstances  connected  with  the  case  in  a  clear  and 
connected  manner  so  far  as  the  witness  has  knowledge  of 
them. 

240.  These  questions  and  answers  are  fully  recorded  and 
so  far  as  possible  the  exact  words  of  the  answers  to  the 
questions  are  entered,  in  order  that  the  court  and  the 
reviewing   authority   may   understand   the   precise   idea 
intended  to  be  conveyed  by  the  witness.     Every  member 
of  the  court  should,  if  it  is  possible,  hear  the  testimony 
that  he  may  understand  the  full  weight  of  the  evidence 
as  it  appears  from  the  words  and  manner  of  each  witness. 

241.  Cross-examination. — The  direct  examination,  by 
the  judge-advocate,  being  completed,  he  so  announces  and 

1  Article  92. 

2  See  post,  par.  615. 


120  MILITARY  LAW 

the  accused  is  then  entitled  to  cross-examine  the  witness, 
after  which  there  may  be  a  re-direct  examination,  and 
a  cross-examination  upon  any  new  point  brought  out 
therein.1 

242.  Examination   by  the    Court. — Upon  conclusion 
of  the  examination  of  a  witness  by  the  parties  to  the  case 
the  court  may,  when  necessary,  ask  questions  to  clear  up 
doubtful  points  or  to  make  plainer  the  evidence  given, 
although  it,  or  any  member,  with  its   assent,  may  ask  a 
question  for  this  purpose  at  any  time.     This  being  con- 
cluded and  there  being  no  further  questions  asked  him, 
the  witness  is  thereupon  excused;  but  he  may  be  recalled 
by  either  party  for  further  examination  or  cross-examina- 
tion upon  an  application  to  the  court  to  this  effect  being 
granted;  or  the  court  itself  may  direct  him  recalled. 

A  witness  recalled  is  not  again  sworn  in  the  same  case, 
but  it  is  usual  to  warn  him  that  he  is  still  under  oath  as 
administered  to  him  in  the  beginning. 

243.  Objections. — Objections  may  be  made  by  either 
party  to  any  question  asked,  or  to  the  admission  of  oral 
or  written  evidence  on  the  ground  that  it  is  irrelevant, 
immaterial,  improper,  and  inadmissible  under  the  rules  of 
evidence,  being  secondary  evidence,  hearsay,  etc.1 

244.  A  question  asked  by  a  member  of  the  court  and  ob- 
jected to  will  be  recorded  as  " question  by  member"  if 
the  objection  is  sustained;   if  not  sustained  it  becomes  a 
" question  by  the  court."     The  decision  of  the  court  as 
to  whether  a  question  shall  be  asked  or  not,  or  as  to  the  in- 
admissibility  of  evidence,  is  final. 

245.  In  making  the  objection  the  grounds  upon  which  it 
is  based  must  be  stated;  a  simple  statement  of  objection 
without  giving  the  reason  for  it  will  not  be  sustained. 

If  the  question  is  not  an  important  one,  when  objection 
is  made,  the  court  may  determine  it  at  once;  but  if  there 
1  See  Evidence,  Chapter  XXIX,  post,  par.  547  et  seq. 


INTRODUCTION  OF  EVIDENCE  121 

is  to  be  discussion  concerning  it,   the  court  should  be 
cleared,  and  its  determination  announced  upon  re-opening. 

246.  Both  the  judge-advocate  and  the  accused  may, 
after  their  examination  has  closed,  submit  a  question  to 
the  court,  and  upon  its  assent  to  being  put  it  is  entered 
upon  the  record  as  a  " question  by  the  court." 

247.  If  no  stenographer  is  present  all  questions  are 
written  out  in  full  and  handed  to  the  judge-advocate,  who 
puts  them  to  the  witness  and  records  the  answers;  if  there 
is  a  stenographer  for  the  court  the  examination  may  be 
conducted  orally  as  in  civil  courts. 

248.  A  Leading  Question  is  one  which  embodies  a  ma- 
terial fact  which  may  be  answered  by  "Yes"  or  "No"; 
or  one  which  assumes  a  fact  which  is  in  controversy,  so  that 
the  answer  thereto  may  really  or  apparently  admit  that  fact ; 
or,  in  general,  one  which  suggests  the  answer  to  the  wit- 
ness.    Such  questions  are  not  permitted  except  during 
cross-examination,  or  in  case  of  a  reluctant  witness,  or  to 
refresh  memory,  etc.1 

249.  Reading  Over  the  Testimony. — After  all  the  testi- 
mony of  a  witness  has  been  received  and  his  examination 
has  been  completed  it  may  be  read  over  to  him,  if  he  desires 
to  hear  it,  for  purpose  of  correction  or  explanation  of  any 
point  not  clear;   all  such  explanations  should  be  entered 
in  the  record  without  expunging  the  original  testimony. 
He  is  then  permitted  to  retire. 

The  judge-advocate  then  calls  his  next  witness,  and  the 
trial  proceeds  with  his  examination  as  before.  When  his 
last  witness  has  testified,  and  when  the  judge-advocate 
has  produced  all  his  evidence,  he  announces  that  "the 
prosecution  here  rests,"  and  this  is  entered  upon  the 
record. 

250.  Sick  or  Absent  Witnesses. — Where  a  witness  is 
sick  and  cannot  attend,  or  is  absent,  the  court  may  ad- 

1  See  Wigmore  on  Evidence,  Vol.  1,  Sec.  770,  771. 


122  MILITARY  LAW 

journ  to  such  time  as  may  be  necessary  to  secure  his  attend- 
ance if  he  is  a  material  witness.  Should  he  be  sick  at  the 
post,  and  the  surgeon  think  him  capable  of  testifying,  the 
court  may  adjourn  to  his  quarters  and  receive  his  testi- 
mony, the  accused,  his  counsel  and  the  judge-advocate 
being  present  with  the  usual  right  of  examination  and 
cross-examination.  Where  a  witness  resides  outside  the 
limits  of  the  State,  Territory,  or  District  in  which  the 
court  sits,  his  evidence  may  be  obtained  by  deposition. 

DEPOSITIONS 

251.  "The  depositions  of  witnesses  residing  outside  the 
limits  of  the  State,  Territory,  or  District  in  which  any 
military  court  may  be  ordered  to  sit,  if  taken  on  reasonable 
notice  to  the  opposite  party  and  duly  authenticated,  may 
be  read  in  evidence  before  such  court  in  cases  not  capital."  1 

252.  A  capital  case  is  one  punishable  by  death;   in  all 
cases,  therefore,  not  so  punishable,  depositions  may  be 
taken  under  the  above  article.     With  the  consent  of  both 
parties  the  deposition  of  a  person  residing  within  the 
State,  Territory,  or  District  in  which  the  court  sits  may  be 
taken  and  read  in  evidence;  in  such  case  a  written  stipu- 
lation as  to  the  admission  of  the  deposition,  signed  by  both 
parties,  should  be  attached  to  the  deposition  before  the 
answers  of  the  witnesses  are  taken.     In  capital  cases,  or  in 
cases   where    the  judge-advocate  can  certify  "that  the 
interests  of  justice  demand  that  the  witness  shall  testify 
in  the  presence  of  the  court,"  the  regular  subposnas  will 
be  made  out  by  the  judge-advocate,  certified  to  as  above, 
if  necessary,  and  transmitted  to  the  commander  of  the 
department  where  the  court  is  convened,  with  a  request 
that  they  be  duly  served  on  the  witness,  if  a  civilian. 
If  the  witness  is  in  the  military  service  the  department 

1  Article  91.     See  Chapter  XXXI,  post,  par.  798. 


DEPOSITIONS  123 

commander  will  be  requested  to  order  him,  or  cause  him 
to  be  ordered,  to  attend  before  the  court.1 

253.  The  deposition  may  also,  by  agreement,  be  taken 
before  the  meeting  of  the  court,  the  interrogatories  and 
cross-interrogatories  being,  in  such  case,  signed  by  the 
judge-advocate  and  the  accused  instead  of  the  president  and 
judge-advocate;2  or  they  may  be  taken  "on  reasonable 
notice  to  the  other  party,"  in  which  case  they  will  be  sub- 
ject to  exceptions  when  read  in  the  court. 

254.  The  usual  method  of  preparing  the  deposition  is  for 
the  party  desiring  the  evidence  to  prepare  his  list  of  inter- 
rogatories and  submit  them  to  the  other  party,  who  then 
prepares  his  cross-interrogatories;    to  these  other  inter- 
rogatories   and    cross-interrogatories    may    be    added,    if 
desired,  and  the  whole  is  then  submitted  to  the  court, 
which  may  add  such  interrogatories  as  it  deems  necessary 
or  proper;   neither  party  can  object  when  the  court  acts 
thereon,  its  decision  in  the  matter  being  final.     The  docu- 
ment being  duly  prepared,  the  judge-advocate,  if  the  wit- 
ness is  a  civilian,  issues  duplicate  subpoenas  as  in  the  case 
of  other  witnesses.     He  does  not,   however,   insert  the 
time  when,  or  the  place  where,  the  witness  is  to  appear 
before  the  officer  who  is  to  take  the  deposition;   these 
being  filled  in  by  the  officer  himself  before  the  subpoena  is 
served. 

Where  the  name  of  the  officer  who  is  to  take  the  dep- 
osition is  not  known  in  advance  it  will  be  filled  in  by  the 
convening  authority,  to  whom  the  interrogatories  are  for- 
warded with  the  request  that  the  deposition  be  taken,  and 
who  upon  receipt  thereof  designates  an  officer  for  this 
purpose. 

255.  If  the  deposition  of  a  military  witness  is  required, 
subpoenas  will  not  be  enclosed  with  the  interrogatories, 

1  Court-martial  Manual,  p.  41. 

2  Id.,  p.  39;  Id.,  p.  170,  note. 


124  MILITARY  LAW 

but  the  officer  before  whom  the  deposition  is  to  be  taken, 
or  the  officer  who  causes  it  to  be  taken,  will  direct  the 
witness  to  appear  at  the  proper  time  and  place.1 

256.  The  oath  may  be  administered  to  the  witness  by  the 
judge-advocate  of  a  department,  or  of  a  court-martial,  or 
by  the  trial  officer  of  a  summary  court.2    Where  none  of 
these  officials  are  available  the  oath  should  be  taken  before  a 
notary  public  or  other  civil  officer  having  authority  to 
administer  oaths  for  general  purposes. 

257.  The  deposition  when  completed  is  certified  to  by 
the  officer  designated  to  secure  it,  as  duly  made  and  taken 
under  oath,3  and  is  by  him  forwarded  in  a  sealed  package 
direct  to  the  president  of  the  court-martial.     When  re- 
ceived the  entire  deposition  must  be  submitted  in  evidence; 
neither  party  has  a  right  to  withhold  any  part  of  it,  but 
it  must  be  received  in  its  entirety.     It  is  attached  to  the 
record,  with  a  suitable  reference  mark  in  the  body  of  the 
record,  containing  a  statement  of  the  fact,  and  of  all  actions 
taken  with  reference  to  it.4 

258.  The  witness  making  deposition  is  entitled  to  fees 
and  mileage  to  the  place  of  attendance  and  return,  as  in 
case  of  other  witnesses.     Upon  receipt  of  the  deposition 
it  is  the  duty  of  the  judge-advocate  to  certify  the  ac- 
count, stating  the  fact  of  attendance  and  period  thereof, 
and  to  mail  the  accounts,  with  duplicate  copies  of  the 
order  convening  the  court,  to  the  witness,  who  receives 
payment  thereof  from  any  army  paymaster.5 

Persons  before  whom  depositions  of  civilian  witnesses 
are  taken  for  use  before  courts-martial  will  be  paid  the 

1  Court-martial  Manual,  p.  39, 

2  Act  July  27,  1892. 

3  For  Form,  see  Appendix  E,  17..     These  requirements  having  been 
complied  with,  the  deposition  will  have  been  "duly  authenticated  "  as 
prescribed  by  the  law. 

4  In  foreign  countries  the  only  mode  in  which  depositions  can  be 
taken  is  under  a  commission,  duly  authorized  therefor.      (Stein  v, 
Bowman,  13  Pet.  (38  U.  S.)  209.) 

5  See  Forms,  Appendix  E,  18-20. 


DEPOSITIONS  125 

fees  allowed  by  the  law  of  the  place  where  the  depositions 
are  taken.1 

259.  The  deposition  duly  taken,  under  the  91st  Article  of 
War,  on  the  part  of  the  prosecution  is  not  subject  to  objec- 
tion by  the  accused,  and  cannot  be  rejected  by  the  court 
merely  upon  the  ground  that  under  the  Vlth  Amendment 
to  the  Constitution  "in  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  ...  to  be  confronted  with  the  wit- 
nesses against  him."     This  constitutional  provision  has  no 
reference  to  courts-martial;    the  " criminal  prosecutions" 
referred  to  are  prosecutions  in  the  United  States  civil 
courts.2 

Affidavits  taken  ex  parte  and  not  as  depositions  under 
the  91st  Article  of  War  are  in  no  case  admissible  as  evi- 
dence unless  expressly  consented  to  by  the  accused  with 
full  knowledge  of  his  rights.3 

260.  Witnesses  for  the  Def ense.— Before  introducing  his 
witnesses  for  the  defense  the  accused  may  desire  time  to 
prepare  for  it,  and  a  reasonable  delay  is  usually  granted 
if  it  is  requested  for  that  purpose,  not  more  than  a  few 
hours,  or  a  day,  being  necessary  if  the  witnesses  are  at 
hand.     He  may  also  precede  the  examination  of  witnesses 
by  a  statement  of  the  case  as  he  expects  to  prove  it;  but 
usually  statements  are  deferred  until  the  close  of  the  trial. 

261.  His  witnesses  when  introduced  are  sworn  by  the 
judge-advocate,  who  also  asks  their  names  that  they  may 
be  correctly  entered  upon  the  record.     Each  witness  is 
then  examined  by  the  accused,  and  cross-examined  by  the 
judge-advocate,  questioned  by  the  court,  etc.,  the  method 
of  procedure  being  similar  to  that  in  case  of  a  witness  for 
the  prosecution. 

262.  Finally  the  accused  may  ask  to  testify  in  his  own  be- 
half, and  if  he  does  so,  the  fact  must  be  entered  on  the 

1  Court-martial  Manual,  p.  40;  Cir.  12,  A.  G.  O.,  1901. 

2  Dig.  Op.  J.  A.  G.  272;  Id.  1019. 

3  Court-martial  Manual,  p.  45. 


126  MILITARY  LAW 

record  that  "the  accused  was  then,  at  his  own  request/' 
duly  sworn  as  a  witness  "in  his  own  defense/'  for  the 
statute  provides  that  at  his  own  request,  but  not  other- 
wise, he  shall  be  a  competent  witness  and  that  "his  failure 
to  make  such  request  shall  not  create  any  presumption 
against  him."  l 

263.  If  he  does  appear  as  a  witness  on  his  own  behalf  he 
is  subject  to  cross-examination  as  any  other  witness,  and 
to  the  rules  governing  the  admission  of  evidence.     Having 
voluntarily  offered  himself  as  a  witness,  he  thereby  becomes 
bound  to  submit  to  a  proper  cross-examination  under  the 
law  and  practice  in  the  jurisdiction  where  he  is  being 
tried; 2  and  is  subject  to  impeachment  like  other  witnesses.3 

264.  A  greater  latitude  is  allowable  in  the  cross-exami- 
nation of  a  party  who  places  himself  on  the  stand  than  in 
that  of  other  witnesses.     Still  when  the  cross-examination 
is  directed  to  matters  not  inquired  about  in  the  principal 
examination,  its  course  and  extent  is  very  largely  sub- 
ject to  the  control  of  the  court  in  the  exercise  of  a  sound 
discretion,   and   the   exercise   of   that   discretion  is   not 
reviewable  by  the  civil  courts  on  a  writ  of  error.4 

The  accused,  as  he  is  not  required  to  testify  and  need 
not  go  on  the  stand  at  all,  must,  if  he  take  the  stand, 
testify  to  all  facts  relevant  to  the  case,  and,  in  the  absence 
of  statutes  restricting  the  cross-examination,  he  may  be 
questioned  as  any  general  witness  in  the  case.5  He  may 
be  cross-examined  on  the  whole  case,  and  not  simply  on 
what  relates  to  his  examination-in-chief.6 

When  the  defendant  becomes  a  witness  he  is  made 

1  Act  March  16,  1878,  20  United  States  Statutes  at  Large,  p.  30. 

2  Spies  v.  Illinois,  123  U.  S.  180. 

3  Fitzpatrick  v.  U.  S.,  178  U.  S.  316. 

4  Rea  v.  Missouri,  17  Wall.  (84  U.  S.)  542;    Davis  v.  Coblens,  174 
U.  S.  719. 

5  Op.  J.  A.  G.,  May  15,  1905.  See  Fitzpatrick  v.  U.  S.,  178  U.  S.  315. 

6  Wharton,  Law  of  Ev.,  Vol.  1,  Sec.  481;  Winthrop,  Vol.  1,  p.  507; 
Jones  on  Evidence,  par.  748,  p.  1608;   Spies  v.  Illinois,  123  U.  S.  180. 


DEPOSITIONS.  127 

competent  for  all  purposes  in  the  case,  and  if,  by  his 
own  testimony,  he  can,  if  innocent,  explain  and  rebut 
a  fact  tending  to  show  his  guilt,  and  he  fails  to  do  so, 
the  same  presumption  arises  from  his  failure  as  would 
arise  from  a  failure  to  give  the  explanation  by  another 
witness,  if  in  his  power  to  give  it.1  He  cannot,  how- 
ever, be  compelled  to  give  answers  which  will  incriminate 
him. 

1  Rapalje,  Law  of  Witnesses,  Sec.  151;  Stover  v.  People,  56  N.  Y.  315. 


CHAPTER  XVII 
DEFENSES 

ELEMENTS   NECESSARY   TO    CONSTITUTE   CRIME 

265.  Common  Law  Crimes.— To   constitute   a    crime 
under  the  common  law,  there  must  be  some  act  follow- 
ing upon  an  unlawful  thought  or  evil  intent.     An  act 
and  an  evil  intent  must  combine  to  constitute  in  law  a 
crime,  and  generally,  perhaps  always,  they  must  concur 
in  point  of  time.1     An  evil  intent  is  a  necessary  element 
of  every  criminal  offense  at  common  law,  and  when  not 
susceptible  of  direct  proof  it  is  to  be  implied  from  the 
circumstances,  and  the  criminal  intent  and  overt  act  must 
concur  in  point  of    time.2     Persons,  therefore,  incapable 
of  entertaining  such  intent  cannot  incur  legal  guilt.    This 
inability  may   arise  from  mental  incapacity,  as  idiocy, 
lunacy,  or  the  like,  or  "insanity"  employed  in  the  large 
sense  as  including  the  whole.3 

266.  Statutory  Crimes. — In   addition   to   the   offenses 
at   common  law,    there    are  acts   declared   criminal   by 
express  enactment  of  the  law-making  power,  and  which 
are,    therefore,    called   statutory   crimes.     In    these    the 
criminality  of  the  act,  or  of  the  omission,  constituting  the 
offense,  does  not  depend  upon  any  question  as  to  whether 
or  not  it  is  malum  in  se,  or  morally  wrong  in  itself;   but 
it  is  an  offense,  if  proved,  because  it  is  malum  prohibitum, 

1  Bishop's  New  Cr.  Law,  Sec.  206,  207. 

2  Am.  and  Eng.  Encyc.  of  Law,  Vol.  8,  pp.  284,  285. 

3  See  Bishop's  New  Cr.  Law,  Sec.  375,  and  note  to  Sec.  379. 

128 


DEFENSES  129 

or  one  which  is  wrong  because  prohibited  by  law,  and 
which  may,  or  may  not,  involve  moral  turpitude. 

In  statutory  crimes  intent  may,  or  may  not,  be  in- 
cluded in  the  law  as  a  necessary  element  of  the  offense. 
If  intent  is  an  essential  element,  "lack  of  intent'7  may 
be  shown,  as  in  other  crimes.  But  where  no  intent, 
necessary  to  constitute  the  crime,  is  prescribed  by  statute, 
the  act  or  omission,  when  proved,  is  criminal,  without 
regard  to  the  intent  with  which  it  was  committed.  In 
such  cases  only  the  act  or  omission  need  be  proved.1 
The  lack  of  intent,  and  the  absence  of  criminal  motive, 
may,  however,  be  set  up  in  defense  before  a  court-martial, 
as  a  ground  for  mitigation  or  release  from  punishment. 

267.  Defenses. — The  term  " defense"  means   a   right 
possessed  by  the  accused  to  place  before  the  court  every 
matter   tending   to   defeat   the  accusation   or  any  part 
thereof,  and  the  form  it  takes  varies  with  the  form  of 
the  charges  and  the  circumstances  of  the  case. 

The  court  should  allow  great  latitude  to  the  accused 
in  making  his  defense.  He  must,  however,  abstain  from 
contemptuous  or  disrespectful  language  toward  the  court, 
or  his  superiors  in  rank,  and  coarse  and  insulting  language 
toward  others.  But  he  may,  for  the  purpose  of  his 
defense,  impeach  the  evidence  and  motives  of  the  wit- 
nesses and  prosecutor,  and  charge  other  persons  with 
blame  and  even  criminality,  subject,  however,  if  he  does 
so,  to  any  liability  to  further  proceedings  to  which  he 
would  otherwise  be  subject.  The  court  may  caution  the 
accused  as  to  the  irrelevance  of  his  defense,  but  should 
not,  unless  in  special  cases,  stop  his  defense  solely  on  the 
ground  of  such  irrelevance.2 

268.  As  every  crime  under  the  common  law  consists  of 

1  See  Article  60,  Chapter  XXXI,  post,  par.  767;  also  Sections  3618- 
3652,  5357,  5483,  5488-5497,  Rev.  Stat.  U.  S. 

2  Manual  Military  Law,  War  Office,  England,  1894,  p.  641. 


130  MILITARY  LAW 

two  elements,  intent  and  an  act,  if  the  intent  is  absent 
the  act  alone  will  not  constitute  the  crime. 

The  defense  may,  therefore,  show  lack  of  intent,  and 
this  may  be  done: 

a.  When  there  is  a  complete  or  partial  incapacity  to 
commit  crime  through  a  defect  of  understanding.     Under 
this  class  come  such  defenses  as  infancy,  insanity,  and 
drunkenness. 

b.  Where  the  understanding  is  not  defective,  but  the 
circumstances  so  control  the  will  as  to  lead  it  to  a  wrong 
conclusion  of  fact. 

c.  Where  the  will  is  constrained  and  the  act  compelled 
by  force  and  violence. 

269.  i st.  Incapacity  through  Defect  of  Understanding. 
Incapacity  Resulting  from  Infancy. — Since  criminal 

capacity  depends  upon  the  understanding  rather  than  the 
age,  there  can  be  no  fixed  rule  which  will  operate  justly  in 
every  possible  case  but,  under  the  common  law,  and,  in 
general,  under  the  law  of  most  States,  a  child  under  the 
age  of  seven  years  is  conclusively  presumed  incapable 
of  entertaining  a  criminal  intent,  and  cannot  commit  a 
crime.  Between  the  ages  of  seven  and  fourteen  the  pre- 
sumption still  exists,  but  may  be  rebutted.  After  the 
age  of  fourteen  he  is  presumed  to  have  sufficient  capacity, 
and  must  show  affirmatively  to  the  contrary.1 

270.  Defect  of  Mind. — Defect  of  mind  as  in  idiocy,  or 
imbecility  resulting  from  some  congenital  defect  or  from 
some  obstacle  to  the  development  of  the  faculties  super- 
vening in  infancy,  is  looked  upon  in  law  as  an  absence 
of   all   mind,    precluding   the   possibility   of   forming   an 
intent  or  conception  of  the  consequences  of  an  act. 

271.  Insanity. — A  person  cannot  be  tried  if  he  is  insane, 
though  he  was  sane  when  he  committed  the  act,  as  he  is 

1  Clark's  Cr.  Law,  p.  49;  Davis'  Military  Law,  p.  125;  Wharton,  Cr. 
Evidence,  Sec.  801. 


DEFENSES  131 

deemed  incapable  of  conducting  his  defense;  nor  can  an 
insane  person  be  sentenced  and  punished,  even  after 
conviction.1 

Insanity  may  be  the  result  of  defective  development 
of  the  faculties;  as  (a)  idiocy  or  imbecility  resulting 
from  congenital  defect  or  from  an  obstacle  to  the  develop- 
ment of  the  faculties  supervening  in  infancy;  or  (b)  it 
may  result  from  lesion  of  the  faculties  subsequent  to 
their  development  resulting  in  (1)  mania,  mental  or 
emotional,  and  either  general  or  partial,  or  (2)  in  de- 
mentia consecutive  to  mania  or  injuries  of  the  brain, 
or  due  to  senility,  peculiar  to  old  age.2 

Insanity  in  the  form  of  mania  or  dementia,  either 
general  or  partial,  arising  from  lesion  of  the  faculties 
subsequent  to  their  development,  may  be  subject  to 
lucid  intervals,  during  which  responsibility  for  crime  will 
attach  to  the  person,  so  that  at  that  time  he  is  responsible 
for  his  acts,  while  he  may  be  irresponsible  at  other  times. 

272.  Moral  insanity  is  a  defect  or  disease  or,  more  prop- 
erly, a  perverted  condition  of  the  moral  system,  where  the 
person  is  mentally  sane,  and  does  not  exempt  one  from 
criminal  responsibility.3    This  condition  is  distinguished 
from  irresistible  impulse  by  the  fact  that  the  mind  is  not 
diseased   as  it   is   in   the  latter   case.4    Mere  emotional 
insanity,    or   temporary   frenzy   or   passion  arising  from 
excitement  or  anger  and.  not  from  any  mental  disease,  is 
never  an  excuse  for  crime.5 

273.  Test  of  Capacity  in  Case  of  Insanity.— The  true 
test  of  responsibility  lies  in  the  word  " power";  has  the 
accused  the  power  to  distinguish  right  from  wrong,  and 

1  Clark's  Cr.  Law,  p.  52;  4  Blackstone's  Comm.,  p.  24;  Bishop's  New 
Cr.  Law,  Vol.  1,  Sec.  396. 

2  Bishop's  New  Cr.  Law,  note  to  Sec.  379. 

3  Clark's   Cr.   Law,  pp.   52,  58;    Bishop's  New   Cr.   Law,  Vol.   1, 
Sec.  387. 

4  Clark's  Cr.  Law,  p.  55. 
6  Id.,  p.  58. 


132  MILITARY  LAW 

the  power  to  adhere  to  the  right  and  avoid  the  wrong? 
If  so  he  is  responsible  for  the  consequence  of  his  act.1 

274.  Every  defendant  is  presumed  in  law  to  be  sane 
and  the  burden  of  proving  insanity,  at  the  time  of  the 
commission  of  the  act,  as  a  defense,  is  held  to  lie  upon  the 
accused;  and  it  is  not  sufficient  merely  to  raise  a  reason- 
able doubt  as  to  sanity,  but  the  evidence  upon  that  point 
must  preponderate  in  favor  of  the  accused,  or  be  sufficient 
to  satisfy  the  court  of  that  fact.2 

275.  Drunkenness. — Temporary  insanity,  produced  im- 
mediately by  intoxication,  does  not  destroy  responsibility 
where  the  patient  when  sane  and  responsible  made  himself 
voluntarily  intoxicated.3    A  person  may,  however,  be  so 
drunk  when  he  commits  an  act  that  he  is  incapable,  at 
the  time,  of  entertaining  the  criminal  intent  which  is  the 
essential  element  of  crime;  especially  is  this  true  as  to  the 
intent  to  take  life,  or  to  commit  larceny,  or  to  pass  counter- 
feit money.4    This  applies  also  to  military  offenses  where 
specific  intent  is  an  element  necessary  to  constitute  the 
particular  offense,  such  as  desertion,  disobedience  of  orders 
in  violation  of  the  21st  Article  of  War,  mutiny,  etc.,  pro- 
vided that  the  drunkenness  occurred  before  the  act  and 
wras  such  as  to  disqualify  the  accused  from  forming  the 
intent  necessary  in  each  case.     But  where  the  intent  to 
commit  the  crime  was  formed  when  the  accused  was  in 
possession  of  his  faculties,  voluntary  drunkenness  will  not 
excuse  the  offense. 

276.  Where  a  person  is  too  drunk,  when  he  commits  an 
act,  to  entertain  specific  intent,  essential  in  order  that  the 
act  may  constitute  a  particular  crime,  and  did  not  first 
form  such  intent  and  then  become  intoxicated,  he  is  not 

1  Davis'  Military  Law,  p.  126;  Desty's  Am.  Cr.  Law,  Sec.  236,  p. 
62;  Guiteau's  Case,  10  Fed.  Rep.  202. 

2  State  v.  Quimby  (R.  I.),  L.  R.  A.  322;  see  Guiteau's  Case,  10  Fed. 
Rep.  202,  note  and  references;   Clark's  Cr.  Law,  p.  59. 

3  Wharton,  Cr.  Law,  Vol.  1,  Sec.  49. 

4  Id.,  Sec.  52,  53. 


DEFENSES  133 

responsible  for  that  particular  crime;  it  is  otherwise  how- 
ever if  he  makes  up  his  mind  to  do  an  act,  and  then 
becomes  intoxicated  and  commits  it;  he  is  then  respon- 
sible.1 

277.  The  drunkenness  to  constitute  a  defense,  or  to  be 
admitted  in  evidence,  need  not  be  caused  by  indulgence 
in  spirituous  liquor,  but  may  be  the  result  of  the  use  of 
an  intoxicating  drug.2 

Drunkenness  caused  by  morphine  or  other  drug,  pre- 
scribed by  a  medical  officer  of  the  Army  or  civil  physician, 
may  constitute  an  excuse  for  a  breach  of  discipline  com- 
mitted by  an  officer  or  soldier,  provided  that  it  quite 
clearly  appears  that  this  was  the  sole  cause  of  the  offense 
committed,  the  accused  not  being  chargeable  with  negli- 
gence or  fault  in  the  case.3 

278.  Presumption. — The  presumption  in  criminal  cases 
is  that  the  accused  had  capacity  to  commit  the  crime,  and 
the  burden  of  proof  to  establish  that  he  did  not  lies  with 
the  defense. 

279.  2d.  Where  the  understanding  is  not  defective 
but  the  circumstances  so  control  the  will  as  to  lead  it 
to  wrong  conclusion  of  fact. 

Ignorance  or  Mistake  of  Law. — Ignorance  of  the  law 
is  no  excuse;  every  person  is  presumed  to  know  the  law, 
and  ignorance  of  it  will  not  exempt  any  one  from  responsi- 
bility. This  rule  sometimes  seems  to  be  a  hard  one,  but 
it  is  necessary,  because  otherwise  offenders  would  plead  it 
in  every  possible  case.  In  particular  cases,  however,  it 
is  sometimes  made  a  ground  for  recommendation  to  mercy 
or  even  to  pardon.  The  General  Orders  and  Regulations 
of  the  Army  published  are  presumed  to  be  known  to  all 
officers  and  persons  in  the  military  service,  and  they  are 

1  Clark's  Cr.  Law,  pp.  62-63.     See  post,  Chapter  XXXI,  Article  3^ 
par.  745. 

2  Winthrop's  Abr.,  3d  Ed.,  p.  112. 

8  Davis'  Military  Law,  p.  127;   Dig.  Op.  J.  A.  G.  1234. 


134  MILITARY  LAW 

bound  to  take  notice  thereof;    plea  of  ignorance  of  them 
will  not  avail  to  excuse  offenses  against  them. 

280.  Ignorance  or  Mistake  of  Fact. — Ignorance  or  mis- 
take of  fact  will,  as  a  rule,  be  accepted  as  exempting  from 
criminal  responsibility,  but  to  this  there  are  exceptions, 
as  where  the  intention  with  which  the  accused  acted 
was  unlawful,  or  where  the  ignorance  or  mistake  is  volun- 
tary or  the  result  of  negligence. 

281.  The  ignorance  of  fact,   to  constitute  a  defense, 
must  be  an  honest  or  innocent  ignorance,  and  not  an  igno- 
rance which  is  the  result  of  carelessness  or  fault;  and,  in 
military  cases,  it  must  appear  not  to  have  proceeded 
from  any  want  of  vigilance,  or  from  failure  to  make  inquiries 
or  obtain  the  information  called  for  by  the  obligations 
and  usages  of  the  service.1 

282.  The  wrongful  intent  being  the  essence  of  every 
crime,  it  follows  that  an  act  without  fault  or  criminal 
carelessness  by  a  person  acting  under  mistake   of   fact, 
just  as  he  would  act  if  the  facts  were  as  he  believed  them 
to  be,  is  not  legally  criminal,  nor  is  a  person  criminally 
liable  for  an  accident  happening  in  the  performance  of 
a  lawful  act  with  due  care;    but  if  the  accident  happen 
while  he  is  doing  a  criminal  act  he  is  responsible.     So  if 
a  person  intending  to  kill  one  person  kills  another,  he  is 
guilty  of  manslaughter  or  murder,  according  to  the  cir- 
cumstances;   or  if  in  doing  a  lawful  act  he  fails  to  use 
proper  care  he  is  responsible. 

283.  Provocation  will  not  excuse  from  criminal  responsi- 
bility, though  it  may  form  ground  for  mitigation  of  the 
offense.2 

284.  Burden  of  Proof. — The  burden  of  proof  is  on  the 
party  setting  up  the  defense  of  ignorance  or  mistake  of 
fact,  to  show  it  and  its  innocence,  and  that  he  was  not 

1  Winthrop's  Abr.  Military  Law,  3d  Ed.,  p.  110. 

2  Clark's  Criminal  Law.  Sec.  38,  p.  72. 


DEFENSES  135 

chargeable  with  either  negligence  or  want  of  reasonable 
care  in  the  performance  of  the  act  charged,1  the  prima 
facie  presumption  being  that  what  one  does  is  with 
knowledge  of  the  facts  and  intentional.2 

285.  3d.  Where  the  will  is  constrained  and  the  act 
compelled  by  force  and  violence. 

Compulsion. — Compulsion  implies  the  doing  of  an  act 
through  force  applied,  or  constraint  of  the  will.  No  act 
can  be  criminal  if  it  is  impossible  for  a  man  to  do  other- 
wise. The  force  that  is  applied  may  be  either  actual  or 
physical,  or  that  of  authority  or  fear.  Where  a  man  seizes 
the  hand  of  another  and  uses  it  against  his  will  to  strike 
a  blow  no  guilt  attaches  to  the  person  so  coerced;  nor 
does  it  attach  to  a  person  committing  an  act  under  threats 
and  imminent  danger  of  instant  death  or  grievous  bodily 
harm. 

This  defense  would  extend  to  any  commander  com- 
pelled by  the  officers  and  soldiers  under  his  command  to 
give  up  or  abandon  his  garrison,  fortress,  or  post  under 
the  conditions  mentioned  in  the  43d  Article  of  War.3 

286.  Obedience  to  a  legal  order  of  a  superior  officer  will 
constitute  a  complete  defense.     Where,  however,  the  order 
of  a  superior  seems  to  be  illegal,  in  determining  whether 
or  not  disobedience  to  it  will  be  justified,  it  is  held  that 
the  order  must  be  obeyed  "  except  in  a  plain  case  of  ex- 
cess of  authority  where  at  first  blush  it  is  apparent  and 
palpable  to  the  commonest  understanding  that  the  order 
is  illegal";4  and  where  the  order  does  not  expressly  and 
clearly  show  its  illegality  on  its  face,  the  law  should  ex- 
cuse the  military  subordinate  when  acting  in  obedience 
to  the  orders  of  his  commander.5 

1  Davis'  Military  Law,  p.  129. 

2  Bishop's  Criminal  Law,  Vol.  1,  Sec.  302-3. 
8  Davis'  Military  Law,  pp.  127-128. 

4  Martin  v.  Mott,  12  Wheat.  (25  U.  S.)  19. 

6U.  S.  v.  Clark,  31  Fed.  Rep.  717;  In  re  Fair,  100  Fed.  Rep.  149. 
See  Dig.  Op.  J.  A.  G.  1853. 


136  MILITARY  LAW 

287.  To  justify,  from  a  military  point  of  view,  a  military 
inferior  in  disobeying  the  order  of  a  superior  the  order 
must  be  one  requiring  something  to  be  done  which  is 
palpably  a  breach  of  the  law  and  a  crime  or  an  injury 
to  a  third  person,  or  is  of  a  serious  character,  not  involving 
unimportant  consequences  only,  and  which,  if  done,  would 
not  be  susceptible  of  being  righted.     An  order  requiring 
the  performance  of  a  military  duty  or  act  cannot  be  dis- 
obeyed with  impunity  unless  it  has  one  of  these  characters.1 

288.  Married  Women. — Under  the  common  law,  when 
a  married  woman  commits  a  crime  in  the  presence  of  her 
husband,  it  is  presumed  that  she  did  it  under  his  coercion, 
but  this  presumption  may  be  rebutted  by  evidence  show- 
ing that  there  was  no  coercion.     For  the  presumption  to 
attach,  the  wife  must  have  been  in  the  immediate  presence 
of  her  husband,  or  so  near  that  he  could  have  exerted  his 
influence  and  control  over  her;  she  must  have  been  in  his 
actual   or   constructive   presence.     This   presumption   in 
the  wife's  favor  will  not,  however,  lie  in  case  of  murder, 
treason,  or  robbery,  because  these  crimes  show  so  much 
malignity  as  to  render  it  improbable  that  she  would  be 
constrained  by  her  husband,  without  the  separate  opera- 
tion of  her  will,  into  their  commission.2 

289.  Alibi. — Another  form  of  defense  is  the  alibi.    This 
is  in  its  nature  a  rebuttal  of  the  evidence  against  the 
accused  and  intended  to  prove  the  impossibility  of  the 
crime  having  been  committed  by  him,  for  the  reason  that 
he  was  " elsewhere"  at  the  time  of  its  commission,  and  at 
such  a  distance,  or  under  such  circumstances,  that  it  was 
impossible  for  him  to  have  been  present  at  the  place  and 
time  of  its  commission. 

The  burden  of  proof  of  establishing  the  crime  and  the 
connection  of  the  accused  with  it  remains  with  the  prosecu- 

1  Dig.  Op.  J.  A.  G.  23. 

2  Bishop's  New  Criminal  Law.  Vol.  1,  Sec.  361. 


DEFENSES  137 

tion.  The  alibi  may  be  established  by  a  preponderance  of 
evidence,  and  being  fully  established  it  is  conclusive  proof 
of  the  innocence  of  the  accused.  This  is  a  very  common 
form  of  defense  in  criminal  cases,  easily  fabricated,  and 
demands  careful  and  scrutinizing  investigation  by  the 
court  before  decision  thereon. 

290.  The  Statement. — The  evidence  and  argument  on 
both  sides  having  been  submitted,  the  accused,  or  his 
counsel  for  him,  may  make  such  statement  for  the  defense 
as  may  seem  advisable.  If  there  be  no  stenographer  pres- 
ent, this  should  be  submitted  in  writing  and  is  attached 
to  the  proceedings,  as  should  also  be  the  reply  of  the  judge- 
advocate,  if  any  is  made.  Such  statements  are  not  evi- 
dence and  should  not  be  made  under  oath,  since  all 
evidence  before  the  court  must  be  introduced  through  wit- 
nesses subject  to  cross-examination,  or  by  matter  subject 
to  investigation. 

In  the  practice  of  courts-martial  prior  to  the  enactment 
of  the  law  which  now  authorizes  an  accused  to  testify  in 
his  own  behalf,  if  he  request  it,  the  statement  was  the  only 
way  in  which  the  accused  could  get  before  the  court  his 
own  view  of  the  facts,  and  matters  of  defense  not  appear- 
ing in  the  evidence.  Since  the  law  above  referred  to  hub 
been  in  force,  what  the  accused  says  in  his  statement,  as 
to  facts  outside  the  argument  it  may  contain  based  upon 
the  law  or  the  evidence,  lacks  the  weight  it  might  otherwh 
have,  because  of  not  being  stated  upon  his  oath,  as  i 
might  be  if  he  so  desired. 

291.  Reply  of  the  Judge-Advocate. — In  ordinary  sim- 
ple cases  a  reply  by  the  judge-advocate  is  generally  not 
necessary.  But  in  important  cases,  or  where  any  question 
has  arisen  as  to  acts  which,  under  the  law,  constitute  the 
particular  crime  charged,  or  as  to  any  point  of  law  or 
evidence,  or  as  to  matter  contained  in  the  statement  or 
argument  for  the  defense  which  demands  it,  he  is  en- 


138  MILITARY  LAW 

titled  to    reply  and  to   explain   as  he   deems   necessary 
and  advisable. 

His  remarks  and  conduct  of  the  case,  however,  should 
be,  as  throughout  the  trial,  entirely  impartial,  tending 
only  to  develop  and  make  clear  the  actual  truth  concern- 
ing any  matter  in  question. 


CHAPTER  XVIII 
THE  FINDING 

292.  The  entire  case  having  been  concluded,  both  on 
the  part  of  the  prosecution  and  the  defense,  the  court  is 
then  closed,  the  judge-advocate,  reporter,  accused,  and  his 
counsel,  and  all  persons  not  members  of  the  court  retiring, 
and  the  court  then  proceeds  to  its  finding  upon  the  evi- 
dence submitted.  The  oath  administered  to  the  members 
(Article  84)  requires  them  "to  well  and  truly  try  and 
determine  according  to  evidence"  the  matter  before 
them,  and  this  should  be  borne  in  mind  in  determining 
the  finding.  Any  knowledge  of  the  affair  outside  the 
evidence  introduced,  personal  opinion,  etc.,  cannot  be 
permitted  to  enter  into  the  determination  of  either  the 
finding  or  sentence. 

Courts-martial  are,  in  one  sense,  "  courts  of  honor/7  and 
their  object  in  any  case  under  trial  is  to  ascertain  the 
whole  truth  of  the  matter.  Technicalities,  such  as  those 
sometimes  used  in  civil  criminal  courts  to  secure  the 
acquittal  of  a  prisoner,  should  not  be  encouraged,  but 
avoided  in  military  practice.  A  conviction  or  an  acquittal 
by  a  military  court  ought  to  be  arrived  at  after  a  full 
examination  of  all  evidence  introduced,  and  a  firm  con- 
viction of  the  guilt  or  innocence  of  the  accused  based 
upon  that  evidence,  and  not  upon  argument  by  the 
parties  or  others  with  relation  to  technical  points  involved. 

293.  All  members,   whatever   the   rank  of  each,    are 

139 


140  MILITARY  LAW 

upon  an  equality  in  the  discussions  and  deliberations  of 
the  court.  The  finding  of  the  court  should  be  governed 
by  the  evidence,  considered  in  connection  with  the  plea. 
Where  no  evidence  is  introduced,  the  general  rule  is  that 
the  finding  should  conform  to  the  plea.  But  where  the 
accused  pleads  guilty  to  the  specification  and  not  guilty 
to  the  charge,  the  court  must  determine  whether  the 
facts  stated  in  the  specification  sustain  the  charge  as  a 
matter  of  law,  and  may  find  the  accused  guilty  of  both 
charge  and  specification.1 

294.  In  all  criminal  cases  the  presumption  of  innocence 
attends  the  accused  and  it  requires  evidence  "  beyond 
reasonable  doubt"  to  convict  of  crime,  but  not  beyond 
all  doubt.     "A.  reasonable  doubt  is  an  honest  substantial 
misgiving  generated  by  the  insufficiency  of  the  proof. 
It  is  not  a  captious  doubt,  nor  a  doubt  suggested  by  the 
ingenuity  of  counsel  or  jury,  and  unwarranted  by  the 
testimony;  nor  is  it  a  doubt  born  of  a  merciful  inclination 
to  permit  the  defendant  to  escape  conviction,  nor  prompted 
by   sympathy  for  him  or   those   connected  with  him." 
"It  is  not  a  fanciful  conjecture  which  an  imaginative 
man  may  conjure  up,  but  a  doubt  which  reasonably  flows 
from  the  evidence  or  want  of  evidence;  a  doubt  for  which 
a  sensible  man  could  give  a  good  reason,  which  reason 
must  be  based  upon  evidence  or  want  of  evidence;   such 
a  doubt  as  a  sensible  man  would  act  upon  in  his  own 
concerns."2 

295.  The  finding  upon  the  specification  must  support 
the  charge.     In  the  case  of  a  specification  drawn  under 
any  charge,  a  finding  of  not  guilty  of  the  specification  will 
necessitate  a  finding  of  not  guilty  of  the  charge.     Where, 
however,  there  are  several  specifications,  properly  drawn, 
the  finding  of  guilty  upon  one  of  them,  although  "not 

1  Dig.  Op.  J  A.  G.  1352. 

2  Davis'  Military  Law,  p.  141;  U.  S.  v.  Newton,  52  Fed.  Rep.  290. 


THE  FINDING  141 

guilty"  of  all  the  others,  will  sustain  the  finding  of  guilty, 
on  the  charge. 

But  if  the  finding  on  all  the  specifications  be  not  guilty, 
or  "find  the  facts  as  charged,  but  attach  no  criminality 
thereto,"  the  finding  upon  the  charge  must  be  "not 
guilty." 

296.  When  the  accused  pleads  guilty  to  a  charge  and 
specification,  or  to  the  specification  or  charge  with  cer- 
tain changes  therein,  and  the  court  finds  the  facts  accord- 
ing to  the  plea,  it  is  sometimes  stated  that  the  plea  of 
the  accused  is  confirmed  and  he  is  found  "not  guilty" 
of  the  excepted  words  but  "guilty"  of  any  substituted 
words,  with  a  corresponding  finding  as  to  the  charge; 
and  these  findings  should  be  definitely  stated.1 

297.  Finding  of  Lesser  Kindred  Offense. — The   right 
and  power  of  courts-martial  to  find  not  guilty  of  a  par- 
ticular offense  charged  under  a  specific  article  of  war, 
but   guilty   of  a  lesser  kindred  offense,   under  another 
article,  has  long  been  established,  and  is  sustained  by 
the  highest  judicial   authority,  but   should  not  be   em- 
ployed where   the   specific  offense  is  established  beyond 
a  reasonable  doubt.2    This  authority  to  find  guilty  of  a 
minor  included  offense  or  to  make  exceptions  or  substitu- 
tions in  the  finding  cannot  justify  the  conviction  of  the 
accused  of  an  offense  entirely  distinct  in  its  nature  from 
that  charged. 

Where  an  officer,  for  example,  is  charged  with  "con- 
duct unbecoming  an  officer  and  a  gentleman"  under  the 
61st  Article  of  War,  the  court  may  find  the  evidence  as 
to  the  conduct  stated  in  the  specification  insufficient  to 
sustain  that  charge  but  yet  sufficient  to  constitute  "con- 
duct to  the  prejudice  of  good  order  and  military  disci- 
pline" under  the  62d  Article  of  War;  and  it  may,  there- 

1  See  par.  297. 

2  Smith  v.  Whitney,  116  U.  S.  183;  Winthrop,  Vol.  1,  p.  544. 


142  MILITARY  LAW 

upon,  find  him  guilty  of  facts  in  the  specification  sus- 
tained by  the  evidence,  and  not  'guilty  of  the  charge 
of  violation  of  the  61st  Article  of  War,  but  guilty  of 
conduct  to  the  prejudice  of  good  order,  etc.,  in  violation 
of  the  62d  Article  of  War.  But  the  reverse  of  this  can- 
not be  done;  an  officer  charged  under  the  62 d  Article 
of  War  with  "  conduct  to  the  prejudice  of  good  order/'  etc., 
cannot  be  found  "not  guilty"  of  that  charge,  but  guilty 
of  "  conduct  unbecoming  an  officer  and  a  gentleman"  under 
the  61st  Article.  Nor  can  a  conviction  of  a  capital  offense 
be  made  under  a  charge  drawn  as  violation  of  the  62d 
Article  of  War,  since  it  only  covers  cases  not  capital. 
In  each  of  these  cases  the  punishment  would  be  greater 
than  that  authorized  under  the  original  charge,  whilst, 
to  justify  the  charge,  the  finding  must  be  of  a  lesser 
included  offense. 

Of  this  form  of  verdict  the  most  familiar"  is  the  find- 
ing of  guilty  of  absence  without  leave  under  a  charge 
of  desertion.  In  such  a  case  in  its  finding  of  guilty  upon 
the  specification,  the  court  should  in  terms  except  the 
words  "did  desert"  and  "in  desertion,"  and  substitute 
therefor,  respectively,  the  words  "  did  absent  himself  with- 
out leave  from"  and  "without  leave,"  pronouncing  him 
innocent  of  the  excepted  words  and  guilty  of  the  sub- 
stituted words,  respectively.1 

The  finding  upon  the  charge  should  regularly  be  "not 
guilty,  but  guilty  of  absence  without  leave,  in  violation  of 
the  32d  Article  of  War.  "2 

298.  Where  a  charge  is  laid  under  the  general  article 
(62),  a  finding  under  any  other  article,  or,  where  a  charge 
is  laid  under  a  specific  article,  a  finding  under  any  other 
specific  article,  would  be  illegal,3  except  as  instanced,  in 
the  preceding  paragraph,  in  the  case  of  the  47th  and  32d 

1  See  ante,  par.  296. 

2  Court-martial  Manual,  pp.  45.  46. 

3  Id. 


THE  FINDING  143 

Articles  of  War.  The  finding  under  the  latter  article  being 
upon  a  charge  under  Article  47  is  permissible,  because 
" absence  without  leave"  under  Article  32  is  a  necessary 
element,  a  minor  included  offense  of  the  absence  without 
leave,  which  enters  into  the  offense  of  desertion,  under 
Article  47. 

299.  In  exceptional  cases  of  acquittal,  where  circum- 
stances justify  it,  courts-martial  sometimes  use  the  words 
"fully"  or  " honorably"  or  "fully  and  honorably"  acquit 
the  accused.     But  such  occasions  seldom  arise,  and  the 
use  of  those  words  is  intended  to  relieve  the  accused  of 
any  suspicion  of  wrong  that  might  attach  through  his 
being  brought  to  trial. 

300.  The  court,  in  addition  to  its  findings,  may  also 
comment  upon  the  charge  as  malicious  or  not  well  founded 
and  may  criticize  the  action  of  the  accuser  or  prosecutor, 
or  comment  upon  the  improper  conduct  of  a  witness,  the 
judge-advocate  or  the  counsel;  and,  when  occasion  justi- 
fies it,  may  reflect  upon  the  state  of  discipline  of  a  com- 
mand as  disclosed  by  the  evidence,  with  a  view  to  correc- 
tion thereof  by  the  proper  authority.    But  such  remarks 
should  always  be  justified  by  the  circumstances  as  dis- 
closed in  the  record  of  proceedings. 


CHAPTER  XIX 
PREVIOUS   CONVICTIONS 

301.  Whenever  a  soldier  is  convicted  of  an  offense  for 
which  a  discretionary  punishment  is  authorized,  courts- 
martial  will  receive  evidence  of  previous  convictions,  if  there 
be  any.1    They  will,  however,  consider  only  such  evidence 
of  previous  convictions  as  is  referred  to  them  by  the  con- 
vening authority. 

302.  It  is  provided  by  Act  of  September  27,  1890,  that 
"  whenever  by  any  of  the  Articles  of  War  for  the  govern- 
ment of  the  Army  the  punishment  on  conviction  of  any 
military  offense   is  left  to  the  discretion  of  the  court- 
martial,  the  punishment  therefor  shall  not,  in  time  of  peace, 
be  in  excess  of  a  limit  which  the  President  may  prescribe." 
Provision  has  been  made  in  the  order  of  the  President, 
dated  June  19,  1905,  prescribing  "limits  of  punishment," 
for   the  consideration  of   "previous   convictions."   when 
there  has  been  a  finding  of  guilty  in  such  cases.    This 
order  being  operative  only  in  time  of  peace,  courts-martial, 
in    time  of  war,   revert  to    their  original    discretionary 
powers. 

303.  By  "previous  conviction"  is  meant  a  conviction 
where  the  sentence  has  been  approved  by  competent  au- 
thority.    It  is  to  be  noted  that  where  the  post  commander, 
being  the  only  officer  present,  sits  as  a  summary  court,  no 

1  A.  R.  970;    Executive  Order,  G.  O.  96,  War  Department,  1905. 

144 


PREVIOUS  CONVICTIONS  145 

further  approval  of  the  sentence  is  required  by  law.1 
When  the  findings  and  sentence  of  a  court-martial  have 
been  disapproved  by  the  proper  reviewing  authority, 
evidence  of  such  previous  conviction  is  not  admissible.2 

304.  The  order  of  the  President  establishing  the  limits  of 
punishment  applies  to  " enlisted  men"  only.    It  does  not 
apply  to  trials  of  officers  or  cadets. 

305.  All  charges  against  an  enlisted  man,  forwarded  to 
the  authority  competent  to  order  a  general  court-martial 
for  his  trial,  must  be  accompanied  by  a  statement  in  the 
prescribed  form,  setting  forth  the  date  of  his  present  and 
former  enlistments,  the  character  upon  each  of  the  dis- 
charges given  him,  with  the  date  of  his  confinement  for  the 
offense  alleged  in  the  charges,  together  with  the  proper 
evidence  of  previous  convictions.     Charges  submitted  to 
a  garrison   or  regimental   court-martial  must  be  accom- 
panied by  the  proper  evidence  of  previous  convictions.3 
Charges  submitted  for  trial  by  a  summary  court  should 
be  accompanied  by  evidence  of  previous  convictions,  to 
be  furnished,  when  practicable,  by  the  officer  preferring 
the  charges;   or,  if  the  evidence  of  previous  conviction  is 
contained  in  the  summary  court  record,  a  reference  to  it 
will  be  sufficient,  and,  if  this  evidence  is  not  submitted 
or  cited,  the  summary  court  may  take  judicial  notice  of 
any  such  evidence  which  that  record  contains.4 

306.  The  evidence  of  previous  convictions  is  limited, 
except  in  case  of  previous  convictions  of  desertion,  on  a 
trial  for  desertion,  to   convictions  by  courts-martial  for 
an  offense  or  offenses  committed  within  one  year  preceding 
the  date  of  commission  of  any  offense  charged  and  during 
the  current  enlistment.5    These  convictions  must  be  proved 

1  Court-martial  Manual  p.  46,  note. 

2  Dig.  Op.  J.  A.  G.  2052. 

3  A.  R.  961,  963;  G.  O.  96,  War  Department,  June  19,  1905,  Article 
III,  Sec.  1. 

4  A.  R.  963, 

6  See  Go  O.  96,  War  Department   1905,  Article  III,  Sec.  1,  5. 


146  MILITARY  LAW 

by  the  records  of  previous  trials  and  convictions,  or  by 
duly  authenticated  copies  of  such  records,  or  by  duly 
authenticated  copies  of  the  orders  promulgating  such  trials 
and  convictions.1 

307.  On  a  conviction  of  desertion,  evidence  of  convic- 
tions of  previous  desertions  may  be  introduced,  irrespec- 
tive of  the  enlistment  or  of  the  period  which  may  have 
elapsed  since  such  conviction  or  convictions.2     Previous 
convictions  of  other  offenses  may  be  introduced  as  ex- 
plained in  the  preceding  paragraph. 

308.  The  proper  evidence  of  previous  convictions  by  a 
summary  court  is  the  copy  of  a  summary  court  record 
furnished  to  company  and  other  commanders,  as  required 
by  par.  964,  Army  Regulations,  or  one  furnished  for  the 
purpose,  and  certified  to  be  a  true  copy  by  the  post  com- 
mander or  adjutant  of  the  post  where  the  original  record 
of  trial  by  summary  court  is  kept.3    When  it  is  impractic- 
able to  obtain  copies  certified  by  the  adjutant  or  command- 
ing officer  of  the  post  where  the  trial  is  held,  the  copy 
furnished  the  company  commander  should  be  forwarded 
with  the  charges  and  read  to  the  court  in  evidence.    This 
copy,  belonging  to  the  company  or  other  commander,  if 
furnished,  must  be  returned  to  him  after  being  presented 
before  the  court,  a  copy  of  it  being  attached  to  the  record 
of  the  court. 

309.  Previous    convictions    submitted   must    be    con- 
victions by  military  courts;    convictions  by  civil  courts 
will   not    be    received    or    considered.     They    are    not, 
however,  limited  to  convictions  of  offenses  similar  to  the 
one  for  which  the  accused  is  being  tried,  the  object  of 
their  submission  being  to  see  if  the  prisoner  is  an  old 
offender,  and  therefore  less  entitled  to  leniency  than  if 

1  G.  O.  96,  War  Department,  June   19,  1905,  Article  III,  Sec.  1; 
A:  R.  970. 

2  G.  O.  96,  War  Department,  June  19,  1905,  Article  III,  Sec.  5. 
•A.R.970. 


PREVIOUS  CONVICTIONS  147 

on  trial  for  his  first  offense.  They  have  no  bearing  upon 
the  question  of  guilt  of  the  particular  charge  on  trial,  but 
only  upon  the  amount  and  kind  of  punishment  to  be 
awarded.1  The  statute  of  limitations  does  not,  therefore, 
apply  to  them  on  their  introduction. 

The  evidence  of  previous  convictions  having  been  re- 
ceived, the  court  is  again  closed  and  proceeds  to  award  its 
sentence 

Court-martial  Manual,  p.  47. 


CHAPTER  XX 
SENTENCE  AND  PUNISHMENT 

310.  When   the  jurisdiction   of  a  military  court  has 
attached,  this  includes  the  power  to  hear  and  determine 
the  case,  and  to  award  the  sentence.1     The  sentence  being 
awarded  and  approved,  it  is  the  duty  of  the  reviewing 
authority  to  execute  or  enforce  it,  or  to  forward  it  to 
the  authority  having  power  to  execute  or  enforce  it. 

If  the  accused  be  found  not  guilty  he  is  acquitted.  If, 
however,  he  has  been  found  " guilty"  by  vote  of  the 
court,  and  the  evidence  of  previous  convictions  has  been 
received,  the  court  is  thereupon  closed  and  proceeds  to 
award  its  sentence.  When  the  conviction  is  upon  a  charge 
drawn  under  an  article  of  war  carrying  a  mandatory 
punishment  the  sentence  therein  prescribed  is  the  only 
one  that  can  be  awarded.  But  if  the  sentence  is  left  to 
the  discretion  of  the  court  it  is  only  limited  by  such  dis- 
cretion and  by  the  order  of  the  President  prescribing  the 
limits  of  punishment  in  such  cases.2 

311.  In  such  cases  of   discretionary  punishment  the 
members  of  the  court,  or  so  many  of  them  as  desire  to 
do  so,  prepare  sentences  in  writing  considered  by  them 
as  adequate  to  the  offense,  and  submit  them  to  the  presi- 
dent, who  reads  them  to  the  court  after  all  are  submitted, 
and  then  proceeds  to  take  the  vote  thereon  beginning 

1  Carter  v.  McClaughry,  183  U.  S.  383. 

2  See  G.  O.  96,  War  Department,  1905;  ante.  par.  304,  and  post,  par 
325, 

148 


SENTENCE  AND  PUNISHMENT  149 

with  the  mildest  sentence,  which,  if  lost,  is  followed  by 
the  next  mildest  and  so  on  till  one  is  found  to  which  a 
majority  of  the  members  agree.1 

312.  The  death  sentence  can  only  be  given  in  the  cases 
expressly  provided  in  the  Articles  of  War,  or  by  Sec.  1343, 
Revised  Statutes,  and  requires  concurrence  of  two-thirds 
of  the  members  of  the  general  court-martial,  as  prescribed 
by  the  following  article: 

Article  96. — No  person  shall  be  sentenced  to  suffer 
death,  except  by  the  concurrence  of  two-thirds  of  the 
members  of  a  general  court-martial,  and  in  the  cases 
herein  expressly  mentioned. 

As  to  the  responsibility  of  members  in  voting  on  the 
sentence  who  have  noted  "not  guilty"  on  the  finding, 
see  post,  Chapter  XXII,  par.  375. 

313.  Sentence  to  Penitentiary. — Usually  persons  con- 
victed by  courts-martial  are  punished,  when  sentenced  to 
confinement,  in  military  prisons  or  post  guard-houses,  but 
provision  has  been  made  by  law  for  punishment,  by  con- 
finement in  a  penitentiary,  of  military  offenders  who  have 
committed  offenses  which  are  also  recognized  as  crimes  in 
civil  law;  but  they  must  be  of  a  character  recognized  as 
crimes  punishable  by  such  law. 

Article  97. — No  person  in  the  military  service  shall, 
under  the  sentence  of  a  court-martial,  be  punished  by 
confinement  in  a  penitentiary,  unless  the  offense  of  which 
he  may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or  Dis 
trict  in  which  such  offense  may  be  committed,  or  by 
the  common  law,  as  the  same  exists  in  such  State,  Ter- 
ritory, or  District,  subject  such  convict  to  such  punish- 
ment.2 

This  article  does  not  prescribe  the  degree  of  punish- 

1  In  case  of  a  tie  vote,  see  post,  par.  376. 

2  See  Art.  97,  post,  par.  804. 


150  MILITARY  LAW 

ment  to  be  awarded  as  does  Article  58;  it  may  be  greater 
or  less  than  that  provided  by  the  statutes  of  the  State, 
Territory,  or  District,  but  its  character  is  such  as,  under 
those  statutes  or  laws,  would  subject  a  person  convicted 
of  the  offense  to  confinement  in  a  penitentiary. 

314.  Before  sentencing  a  person  convicted  of  a  crime 
to    a    penitentiary    the    court-martial    must,    therefore, 
examine  the  laws  of  the  United  States,  and  of  the  State, 
Territory,  or  District  in  which  the  offense  was  committed, 
to    determine   whether   such    punishment   is    authorized 
thereby;    and  whenever  there  is  any  doubt  in  the  mind 
of  the  court  as  to  whether  it  is  so  punishable  the  sen- 
tence to  confinement  should  include  such  words  as  "in 
such   place    as    the   reviewing   authority   may  direct." 1 
The  sentence,  to   authorize   confinement  in  the   United 
States  Penitentiary,  at  Fort  Leavenworth,  must  be  one 
imposing  confinement  for  "more  than  one  year."2 

315.  Department  commanders  will  designate  the  United 
States  Penitentiary  at  Fort  Leavenworth,  Kansas,  as  the 
place  of  execution  of  such  sentences  where  the  term  of 
confinement  is   for  more   than   one   year,   or,  with  the 
approval   of    the   Secretary   of  War,   may    designate    a 
penitentiary  within  the  military  department  if  in  any 
State  or  Territory  within  the  department  provision  has 
been  made  by  law  for  the  confinement  of  such  prisoners 
in  its  penitentiaries.3 

316.  Provision  is  also  made  for  the  trial  of  certain 
offenses  in  time  of  war,  insurrection,  or  rebellion,  by  courts- 
martial  and  the  awarding  of  punishment,  which  shall  not 
be  less  than  that  provided  for  like  offenses  by  the  laws 
of  the  State,  Territory,  or  District  in  which  these  occur. 

Article  58. — In  time  of  war,  insurrection  or  rebellion, 
larceny,  robbery,  burglary,  arson,  mayhem,  manslaughter, 
murder,  assault  and  battery  with  intent  to  kill,  wounding, 

1  A.  R.  973.  2  A.  R.  974.  3  A.  R.  974. 


SENTENCE  AND  PUNISHMENT  151 

by  shooting  or  stabbing,  with  an  intent  to  commit  murder, 
rape,  or  an  assault  and  battery  with  an  intent  to  commit 
rape,  shall  be  punishable  by  the  sentence  of  a  general 
court-martial,  when  committed  by  persons  in  the  mili- 
tary service  of  the  United  States,  and  the  punishment 
in  any  such  case  shall  not  be  less  than  the  punishment 
provided,  for  the  like  offense,  by  the  laws  of  the  State, 
Territory,  or  District  in  which  such  offense  may  have 
been  committed.1 

The  limitation  herein  made  is  that  the  punishment  shall 
not  be  less  than  that  provided  by  the  laws  of  the  State,  etc., 
but  there  is  no  limitation  upon  the  awarding  of  a  punish- 
ment in  excess  of  that  provided  by  those  laws.  It  may 
sometimes  be  necessary,  in  time  of  war  and  public  danger, 
to  award  more  severe  punishment  to  persons  in  military 
service  in  order  to  preserve  discipline  and  assure  safety 
of  the  inhabitants. 

317.  Sentence  to  Military  Prison. — For  offenses  purely 
military  in  character,  such  as  desertion,  disobedience  of 
orders,  and  the  like,  offenders  cannot  be  sentenced  and 
punished  by  imprisonment  in  a  penitentiary,  but  must 
serve  the  confinement  awarded  in  a  military  prison  or 
post  guard-house.  For  all  simple  misdemeanors  and 
offenses  not  serious  in  nature,  where  the  offenders  have 
not  been  sentenced  to  dishonorable  discharge,  they  are 
usually  sentenced  to  confinement  at  hard  labor  under 
charge  of  the  post  guard,  and  are  called  "  garrison  pris- 
oners." But  where  the  offense  is  such  that  "  dishonor- 
able discharge"  is  awarded  as  well  as  confinement  in  a 
penitentiary  or  at  a  military  post,  such  persons  become 
" general  prisoners,"2  and  where  the  period  of  confinement 
to  which  they  are  sentenced  is  six  months  or  more  they 
are  sent  to  certain  posts  designated  by  the  Secretary  of 
War.  In  such  cases,  or  those  involving  long  imprison- 
ment, the  sentence  may  read  "to  be  confined  in  such 
1  See  Art.  58,  post,  par.  765  2  A.  R.  935 


152  MILITARY  LAW 

place  as  the  reviewing  authority   may  direct/7  for  the 
fixed  period  of  punishment.1 

318.  Date  Sentence  Takes  Effect.— The  date  upon 
which  a  sentence  becomes  effective  is  that  of  the  action 
of  the  reviewing  authority  unless  another  date  is  specified. 
In  case  of  dishonorable  discharge  from  the  service,  how- 
ever, it  becomes  effective  when  the  order  promulgating  it 
has  been  received  at  the  place  where  such  sentence  is 
to  be  executed.2  When  the  date  for  the  commencement 
of  a  term  of  confinement  is  not  expressly  fixed  by  the 
sentence,  the  term  of  the  confinement  begins  on  the  date  of 
the  order  promulgating  it,  which  should,  if  practicable,  be 
of  the  same  date  as  the  action  of  the  reviewing  authority. 
If  the  action  of  the  reviewing  authority  and  the  order 
promulgating  the  sentence  are  not  of  the  same  date,  the 
date  of  his  action  will  be  stated  in  the  order  and  that 
will  be  the  date  of  the  beginning  of  the  sentence.3  The 
sentence  is  continuous  until  the  term  expires,  except 
when  the  person  sentenced  is  absent  without  authority.4 

319.  The  word  "  month  "  or  "  months  "  when  employed  in 
a  sentence  is  to  be  construed  as  meaning  a  calendar  month 
or  months.5  The  word  •" imprisonment,"  as  used  in  the 
60th  Article  of  War,  was  not  employed  in  a  technical  sense 
to  signify  imprisonment  at  a  military  post  without  hard 
labor,  but  has  a  broader  signification,  and  empowers  a 
court-martial  to  sentence  a  person  in  the  military  service 
to  imprisonment  at  hard  labor,  or  to  a  penitentiary  where 
hard  labor  is  a  part  of  the  discipline,  where  the  offense  of 
which  he  is  convicted  is  one  for  which  the  civil  tribunals 
could  impose  a  like  sentence.6 

1  See  A.  R.  973.  The  U.  S.  Military  Prison,  for  military  prisoners, 
and  the  U.  S.  Penitentiary,  for  convicts,  are  both  established  at  Fort 
Leaven  worth,  Kansas,  and  are  under  separate  administration. 


2  Dig.  Op.  J.  A.  G.  1155. 

3  A.  R.  978. 

4  A.  R.  977. 

6  Dig.  Op.  J.  A.  G.  2319. 

6  In  re  Langan,  123  Fed.  Rep.  132. 


SENTENCE  AND  PUNISHMENT  153 

320.  Confinement  after  Expiration  of  Enlistment. — 

The  sentence  may  extend  beyond  the  period  of  enlistment, 
but  no  sentence  of  a  court-martial  can  extend  the  term 
cf  service  of  a  soldier  under  his  enlistment  contract  beyond 
the  term  for  which  he  enlisted.  In  case,  therefore,  of  a 
sentence  which,  without  discharging  the  soldier,  runs  be- 
yond his  term  of  enlistment  the  soldier's  discharge  should 
be  made  upon  the  date  that  he  is  entitled  to  it,  but  it  will 
not  be  delivered  to  him  but  held  by  the  authorities  of  the 
prison  where  he  is  serving  his  confinement  until  his  dis- 
charge therefrom. 

321.  In  all  cases  where  discharge  and  confinement  are 
united  in  a  sentence  it  is  always  advisable  to  sentence  the 
prisoner  first  to  be  discharged  and  then  to  be  confined 
for  the  period  designated.     This  relieves  his  immediate 
commander  from  carrying  him  longer  on  the  rolls  and 
enables  the  prisoner  to  be  replaced  by  a  man  who  can  be 
called  upon  for  the  performance  of  military  duties. 

322.  Sentence  in  Excess  of  Law. — Where  a  court  has 
jurisdiction  of  the  person  and  the  offense,  the  imposition 
of  a  sentence  in  excess  of  what  the  law  permits  does  not 
render  the  legal  or  authorized  portion  of  the  sentence 
void,  but  only  leaves  such  part  of  it  as  may  be  in  excess 
open  to  question  and  attack.1     In  case  of  excessive  sen- 
tence, so  much  as  is  legal  may  be  approved  by  the  review- 
ing authority  and  duly  executed.2    And  where  punishment 
is  adjudged  upon  conviction  of  the  accused  on  several 
charges,  it  is  valid  and  operative  provided  that  it  is  a 
punishment  legally  imposable  on  conviction  of  any  one 
of  the  charges  of  which  the  accused  has  been  duly  con- 
victed.3 

323.  The  sentence  awarded  by  a  court-martial,  if  within 

1  U.  S.  v.  Pridgen,  153  U.  S.  49. 

2  Dig.  Op.  J.  A.  G.  1651. 

« Id.  2311;  Carter  v.  McClaughry,  105  Fed.  Rep.  614;  Id.,  183  U.  S. 
386. 


154  MILITARY  LAW 

legal  limits,  is  wholly  within  its  own  discretion.  The 
court  cannot  be  directed  as  to  what  its  sentence  shall  be, 
though  the  reviewing  authority  may  return  it  for  revision 
as  inadequate  or  improper;  but  his  power  ends  there  and 
he  cannot  compel  the  court  to  change  its  sentence  in 
opposition  to  its  own  judgment. 

324.  Reconsideration. — The  court  may,  however,  re- 
consider and  change  its  sentence  at  any  time  so  long  as 
its  record  of  the  case  is  within  its  own  possession  before 
being  forwarded,  or  when  it  has  been  returned  to  it  for 
revision  or  further  consideration. 


CHAPTER  XXI 
PUNISHMENTS 

325.  The  punishments  to  be  awarded  on  conviction  of 
military  offenses  are  either  mandatory  or  discretionary. 

Where  they  are  mandatory  in  the  Articles  of  War  and  in 
Sec.  1343,  Revised  Statutes,  no  other  than  the  prescribed 
punishment  can  be  given;  it  can  neither  be  lessened  nor 
increased  by  the  court. 

Certain  articles  of  war,  however,  prescribe  that  the 
accused  upon  conviction  "  shall  suffer  such  punishment 
as  the  court  may  direct."  This  leaves  the  matter  of  pun- 
ishment in  the  discretion  of  the  court  except  where  re- 
stricted by  the  Executive  Order  prescribing  the  limits  of 
punishment,  authority  for  which  is  conferred  upon  the  Presi- 
dent by  Act  of  Congress  of  September  27, 1890,  and  where 
not  so  restricted  they  are  governed  by  the  customs  of  the 
service  as  applicable  to  each  case  within  the  discretion  of 
the  court.  The  court  should  always  take  into  account 
the  fact  that  the  object  of  punishment  is  not  to  take  ven- 
geance for  the  deed  but  to  prevent  crime  and  the  repetition 
of  the  offense  by  the  offender  and  to  deter  others  from 
similar  acts. 

The  law  under  which  the  President  prescribes  the 
maximum  limit  of  punishment  provides  "that  whenever 
by  any  of  the  Articles  of  War  for  the  government  of  the 
Army  the  punishment  on  conviction  of  any  military 
offense  is  left  to  the  discretion  of  the  court-martial  the 
punishment  therefor  shall  not,  in  time  of  peace,  be  in 

155 


156  MILITARY  LAW 

excess  of  a  limit  which  the  President  may  prescribe."  1 
The  Executive  Order  is  published  by  the  War  Depart 
merit,2  and  is  applicable  to  enlisted  men  only.3 


FORMS    OF    PUNISHMENT 

326.  Of  the   punishments  recognized  as  proper  to  be 
imposed,  some  forms  may  be  awarded  to  either  officers 
or  enlisted  men;    some  are  appropriate  for  officers  only, 
and  others  for  enlisted  men  only. 

For  Officers. — The  punishments  that  may  be  awarded 
officers,  "  depending  on  the  nature  of  the  offense,  are  death, 
dismissal,  suspension  from  rank,  command,  or  duty,  with 
or  without  loss  of  pay  or  part  of  pay,  loss  of  rank,4  im- 
prisonment, fine  or  forfeiture  of  pay,  reprimand,  and  con- 
finement to  limits  of  the  post  or  reservation." 

327.  For  Enlisted  Men. — "The  legal  punishments,  de- 
pending on  the  character  of  the  offense  and  the  jurisdic- 
tion of  the  court,"  which  may  be  given  to  enlisted  men 
"are  death,  confinement,  confinement  on  bread  and  water 
diet,  solitary  confinement,  imprisonment  at  hard  labor, 
ball  and  chain,  forfeiture  of  pay  and  allowances,  dishonor- 
able discharge  from  the  service,  and  reprimand;  for  non- 
commissioned officers,  reduction  to  the  ranks  also;    and 
for  candidates  for  promotion,   deprivation  of  all  rights 
and  privileges  arising  from  a  certificate  of  eligibility";5 
and  for  first-class  privates  reduction  to  second-class  pri- 
vates.6 


1  Act  September  27,  1890. 

2  G.  O.  96,  War  Department,  1905. 


3  Carter  v.  McClaughry,  183  U.  S.  365. 

4 The  ''loss  of  rank"  as  here  used  actually  means  "loss  of  files." 

The  sentence,  in  such  case,  usually  prescribes  a  loss  of files,  so 

that  the  name  of  the  accused  shall  appear  next  below  that  of  some 
given  name  as  it  appears  in  the  list  of  officers  of  that  grade  in  the  Army 
Register. 

5  Court-martial  Manual,  p.  48. 

•  G.  O.  96,  War  Department,  1905,  Article  III,  Sec.  7. 


PUNISHMENTS  157 

328.  Death. — This  sentence  may  be  awarded  to  either 
officers  or  enlisted  men  in  cases  provided  by  law;  but  no 
person  can  be  sentenced  to  death  except  in  cases  expressly 
mentioned  in  the  Articles  of  War,  or  in  cases  of  spies  as 
specified  in  Sec.  1343,  Revised  Statutes  United  States, 
as  so  punishable.     The  manner  of  inflicting  the  punish- 
ment of  death   (except  for  offenses  purely  military)  is 
by  hanging; 1   and  this  is  the  proper  method  of  execution 
of  a  sentence  when  given  for  offenses  under  the  58th 
Article  of  War.     Death  by  hanging  is  looked  upon  by 
military  persons  as  more  ignominious  than  death  by  shoot- 
ing, and  is  the  usual  method  of  execution  designated  in 
case  of  spies,  or  persons  guilty  of  murder  in  connection 
with  mutiny,  or,  sometimes,  for  desertion  in  the  face  of 
the  enemy;   but  for  a  purely  military  offense  like  a  sen- 
tinel sleeping  on  his  post,  such  sentence  when  imposed 
is  usually  "to  be  shot  to  death  with  musketry."     For 
the  sake  of  the  example  and  to  deter  others  from  like 
offenses  these  sentences  are  executed  in  the  presence  of 
the  troops  of  the  command,  assembled  to  witness  them. 

329.  A  court-martial,  in  imposing  the  sentence  of  death, 
should  not  designate  the  time  and  place  for  its  execution, 
such  designation  not  being  within  its  province,  but  per- 
taining to  that  of  the  reviewing  authority.     If  it  does  so 
designate,  this  part  of  the  sentence  may  be  disregarded, 
and  a  different  time  and  place  be  fixed  by  the  command- 
ing general.2    If  the  designated  day  passes  without  exe- 
cution the  same  authority,  or  his  superior,  may  name 
another  day,  the  time  of  execution  being  an  immaterial 
element  of  this  punishment.3 

330.  The  sentence  of  death  is  mandatory  under  the 
57th  Article  of  War  against  all  persons  belonging  to  the 
armies  of  the  United  States,  in  time  of  war  or  rebellion, 
who  force  a  safe-guard. 

1  Sec.  5325,  Revised  Statutes.     2  Dig.  Op.  J.  A.  G.  286.     s  Id.  287, 


158  MILITARY  LAW 

A  safe-guard  is  a  protection  granted  to  persons  or 
property  within  the  theater  of  military  operations.  This 
protection  may  consist  in  a  guard  composed  of  one  or 
more  soldiers,  usually  furnished  with  a  paper,  signed  by 
the  commanding  general  and  his  adjutant-general,  naming 
the  persons  or  property  to  be  guarded  and  commanding 
all  officers  and  soldiers  to  respect  this  safe-guard  and,  if 
necessary,  to  protect  such  persons  or  property;  but  this 
document,  fully  and  exactly  describing  the  persons  and 
property  it  is  intended  to  safe-guard,  and  stating  a  limit 
of  time  for  which  it  is  to  be  held  good,  may  be  posted 
upon  the  property  or  be  delivered  to  the  party  whose 
person,  family,  or  property  it  is  intended  to  protect, 
and  when  so  held  it  is  equally  valid. 

Violation  of  a  safe-guard  is  a  most  serious  offense 
against  discipline,  being  a  wilful  disobedience  of  the 
orders  of  the  commander. 

331.  Several  articles  of  war  l  prescribe  the  death  penalty 
for  offenses  committed  thereunder,  but  permit  modifica- 
tion thereof  by  the  court ;  these  are  as  follows :  for  strik- 
ing, drawing  or  lifting  up  a  weapon,  or  offering  violence 
against  his  superior  officer,  or  disobeying  his  lawful  com- 
mand;2 beginning,  exciting,  causing,  or  joining  in  a  mutiny 
or  sedition ; 3  being  present  at  any  mutiny  or  sedition,  and 
not  endeavoring  to  suppress  the  same,  or  having  knowl- 
edge that  mutiny  or  sedition  is  intended,  and  not  inform- 
ing his  commanding  officer  thereof; 4  a  sentinel  sleeping 
upon  his  post;5  occasioning  false  alarms;6  misbehavior 
before  the  enemy  or  abandoning  fort,  post,  or  guard;  7 
compelling  a  commander  to  surrender;8  making  known 

1  See  Chapter  XXXI,  post,  par.  705  et  seq. 

2  Art.  21.  See  post,  par.  728. 

3  Art.  22.  See  post,  par.  729. 

4  Art.  23.  See  post,  par.  730. 

5  Art.  39.  See  post,  par.  746. 

6  Art.  41.  See  post,  par.  748. 

7  Art.  42.  See  post,  par.  749. 

8  Art.  43.  See  post,  par.  750, 


PUNISHMENTS  159 

the  watchword,  or  giving  a  parole  or  watchword  different 
from  that  which  he  received;1  relieving  the  enemy,  or 
knowingly  harboring  or  protecting  him;2  holding  corre- 
spondence with  or  giving  intelligence  to  the  enemy ; 3 
desertion  in  time  of  war;4  doing  violence  to  persons 
bringing  provisions  or  other  necessaries  into  camp, 
garrison,  or  quarters  of  United  States  forces  in  foreign 
parts.5 

The  sentence  of  death,  though  it  cannot  be  mitigated, 
i.e.,  reduced  in  amount  or  quantity,  may  be  remitted  or 
commuted  by  the  President.6 

332.  Dismissal.7 — This  sentence  is  appropriate  for 
officers  and  cadets  only,  and  is  not  awarded  to  enlisted 
men;  in  their  cases  separation  from  the  service  through 
trial  by  court-martial  is  effected  by  sentence  to  "  dis- 
honor able  discharge." 

The  sentence  of  dismissal  is  mandatory  upon  conviction 
of  an  offense  under  certain  articles  of  war,  as  in  case  of 
receiving  money  or  other  things  for  mustering,  etc.;8  false 
muster;9  false  returns; 10  false  certificate; n  wilfully  losing, 
spoiling,  or  damaging  military  stores; 12  laying  duty  or  im- 
position upon,  or  having  an  interest  in,  sales  of  articles  for 
the  use  of  soldiers;13  sending  or  receiving  challenges  to 
fight  a  duel; 14  suffering  a  person  to  go  forth  to  fight  a  duel, 
or  acting  as  second  or  promoter  thereof;15  drunkenness 

1  Art.  44.     See  post,  par.  751. 

2  Art.  45.     See  post,  par.  752. 

3  Art.  46.     See  post,  par.  753. 

4  Art.  47.     See  post,  par.  754. 

5  Art.  56.     See  post,  par.  763. 

6  Dig.  Op.  J.  A.  G.  341. 

7  See  Chapter  XXXI,  post,  Art.  106,  par.  813. 

8  Art.  6.     See  post,  par.  713. 

9  Art.  5  and  Art.  14.     See  post,  par.  712  and  721. 

10  Art.  8.  See  post,  par.  715. 

11  Art.  13.  See  post,  par.  720. 

12  Art.  15.  See  post,  par.  722. 

13  Art.  18.  See  post,  par.  725. 

14  Art.  26.  See  post,  par.  733. 

16  Art.  27,  28.     See  post,  par.  734,  735. 


160  MILITARY  LAW 

on  duty;1  knowingly  receiving  or  harboring  a  deserter;2 
refusing  or  neglecting,  except  in  time  of  war,  to  deliver 
an  accused  officer  or  soldier  to  a  civil  magistrate  for  an 
offense  against  the  laws  of  the  land,  or  to  assist  in  appre- 
hending him;3  conduct  unbecoming  an  officer  and  a 
gentleman;  4  breach  of  arrest.5 

This  sentence  may  also  be  awarded  in  cases  not  man- 
datory but  where  the  sentence  is  discretionary  with  the 
court. 

333.  A  legal  sentence  of  dismissal,  duly  confirmed  and 
executed,  separates  the  officer  or  cadet  entirely  from  the 
service,  and  is  beyond  the  reach  of  the  pardoning  power; 
the  person  dismissed  can  only  be  restored  to  the  service 
by  a  re-appointment,  and,  in  case  of  an  officer,  subse- 
quent confirmation  by  the  Senate.6 

334.  While   this   sentence   cannot  be   mitigated  it  is 
subject  to  commutation  by  the  President.     It  may  be 
commuted  to  suspension,  loss  of  files,  or  other  punish- 
ment   less    severe  than  dismissal,  in  case  of  officers,  or 
suspension  in  case  of  cadets;    and  in  case  of  enlisted  men 
"  dishonorable  discharge"  maybe  commuted  by  forfeiture 
of  pay.     "The  power  to  remit  or  commute  sentences  of 
death  and  dismissal  remains  with  the  President"  and  can- 
not be  exercised  by  the  military  commander.7 

335.  Summary  Dismissal. — In  time  of  peace  no  officer 
shall  be  dismissed  except  in  pursuance  of  the  sentence  of 
a  general  court-martial,  or  in  mitigation  thereof.8 

In  time  of  war,  however,  the  President  has  the  power  to 
summarily  dismiss  an  officer,  but  in  such  case  the  officer 

1  Art.  38.  See  post,  par.  745. 

2  Art.  50.  See  post,  par.  757. 

3  Art.  59.  See  post,  par.  766. 

4  Art.  61.  See  post,  par.  768. 

5  Art.  65.  See  post,  par.  772. 

8  See  Sec.  1228,  Rev.  Stat.  U.  S. 

7  Dig.  Op.  J.  A.  G.  341. 

8  Art.  99.     See  post,  par.  806;  Sec.  1229,  Rev.  Stat.  U.  S, 


PUNISHMENTS  161 

is  authorized  to  make  application,  within  reasonable  time, 
for  trial  by  court-martial,  which  the  President  shall  con- 
vene as  soon  as  the  necessities  of  the  service  permit,  and 
if  such  court  is  not  convened  within  six  months  from  the 
presentation  of  the  application,  or  when  convened  it  does 
not  award  dismissal  or  death  as  the  punishment,  the  order 
of  dismissal  is  void.1  Dismissal  does  not  attach  any 
legal  disability  to  the  person  dismissed,  and  he  is  not  dis- 
qualified from  re-appointment  to  the  Army  or  from  en- 
listing as  a  soldier  or  from  holding  civil  office  under  the 
United  States,  except  where  specifically  disqualified  there- 
from by  law.2 

336.  Cadets  found  guilty  of  participating  in,   or  en- 
couraging or  countenancing,  hazing  at  the  United  States 
Military  Academy  shall  be  summarily  expelled  from  the 
Academy;  and  any  cadet  convicted  of  such  offense  shall 
not  thereafter  be  re-appointed  to  the  corps  of  cadets  or 
be  eligible  for  appointment  as  a  commissioned  officer  in 
the  Army,  or  Navy,  or  Marine  Corps,  until  two  years 
after  the  graduation  of  the   class   of   which  he  was  a 
member.3 

337.  Suspension. — Suspension  may  be  from  rank,  com- 
mand, or  duty,  and  pay  and  allowances,  or  from  either  or 
from  all  of  them.     It  is  applicable  to  officers  only,  and 
not  to  non-commissioned  officers  among  enlisted  men.4 
Suspension  from  rank  and  command  does  not  deprive  the 
person  sentenced  of  pay  and  allowances  unless  that  for- 
feiture is  specifically  stated  in  the  sentence;  nor  does  it 
involve  a  condition  of  arrest  or  confinement. 

338.  Suspension  from  Rank. — This  sentence  includes 
suspension  from  command,  and,  while  it  does  not  deprive 

1  Revised  Statutes  U.  S.,  Sec.  1230. 

2  Dig.  Op.  J.  A.  G.  1201.     See  post,  Art.  14,  par.  721,  and  Art.  106, 
par.  813. 

3  Act  March  3,  1901. 

4  Dig.  Op.  J.  A.  G.  2423,  note. 


162  MILITARY  LAW 

the  person  of  his  office,  and  he  remains  subject  to  military 
control,  he  is  entirely  cut  off  from  any  promotion  to  which 
he  may  become  entitled  during  the  period  of  his  suspen- 
sion; but  it  does  not  deprive  him  of  the  right  to  gain  files 
in  his  own  grade.  An  officer  under  suspension  has  the 
same  right  to  quarters  as  when  on  duty  status,  if  present 
at  the  post.1 

339.  Suspension  from  Command. — This   is   included 
in  " suspension  from  rank"  but  may  be  awarded  separately, 
and  "when  a  court-martial  suspends  an  officer  from  com- 
mand it  may  also  suspend  his  pay  and  emoluments  for  the 
same  time."  2 

340.  Pay  and  Allowances. — Any  forfeiture  or  suspen- 
sion of  pay  or  allowances  must  be  specifically  stated  in 
the  sentence,  without  which  they  cannot  be  forfeited. 
All  forfeitures  accrue  to  the  United  States,  and  cannot  be 
appropriated  to  settle  indebtedness  to  individuals  or  for 
the  benefit  of  other  parties.3 

341.  Loss  of  Relative  Rank,  or  Files. — This  punish- 
ment is  applicable  to  officers  only.    It  becomes  effective 
on  the  approval  of  the  reviewing  authority,  not  requiring 
confirmation  by  the  President,  and  deprives  the  officer  of 
the  rights  and  privileges  of  his  original  rank.     As  its  effect 
continues  until  the  sentence  is  remitted  it  is  a  continuing 
punishment.     Promotion   of    such    an   officer   would   be 
equivalent  to  a  pardon,  but  his  pardon,  after  promotion, 
would  not  restore  him  to  the  position  he  had  previously 
held  relative  to  others  already  promoted,  nor  divest  others 
of  the  rights  acquired  by  promotion  during  the  pendency 
of  his  reduction.     That  part  of  his  sentence  has  been  fully 
executed  and  is  therefore  beyond  the  reach  of  the  par- 
doning power.4 

1  A.  R.  1040. 

2  Art.  101.     See  post,  par.  808. 

3  See  Forfeitures  and  Stoppages,  post,  par.  351-357. 
«  Dig.  Op.  J.  A.  G.  1632. 


PUNISHMENTS  163 

342.  Imprisonment. — Imprisonment  may  be  awarded 
as  a  punishment   for  either  officers  or  soldiers,  but  to 
officers  only  on  conviction  of  most  serious  crimes  and  in 
connection  with  the  sentence  of  dismissal  to  be  followed 
by  confinement.    But  where  a  fine  is  imposed  as  a  penalty 
under  the  60th  Article  of  War  the  sentence  may  also  im- 
pose a  certain  period  of  confinement,  or  a  continuation  of 
any  imprisonment  otherwise  awarded,  not  to  extend  be- 
yond a  term  stated  in  the  sentience,  for  the  purpose  of  en- 
forcing payment  of  the  fine  unless  the  fine  is  paid  prior 
thereto. 

343.  When  a  sentence  inflicts  the  penalty  of  dismissal 
of  an  officer,  or  the  dishonorable  discharge  of  a  soldier, 
with  imprisonment,  that  part  of  the  sentence  imposing 
dismissal  or  discharge  should  precede  that  part  relating 
to  his  confinement,  so  that  the  accused  shall  first  be  dis- 
missed or  discharged,  and  " thereafter"  be  confined  for 
the  period  stated;    and  where  "hard  labor"  is  intended  it 
should  be  stated  in  the  sentence;  "hard  labor"  being  a 
distinct  punishment,  which  must  be  specifically  awarded. 
The  term  of  the  imprisonment  must  also  be  given  in  the 
sentence. 

344.  Officers  or  soldiers  may  be  sentenced  to  imprison- 
ment in  a  penitentiary,  but  the  offense  of  which  such  per- 
son is  convicted  must  be  one  so  punishable  upon  conviction 
thereof,  under  the  laws  of  the  United  States,  or  of  the  State, 
Territory,  or  District  in  which  the  offense  was  committed, 
as  provided  by  the  97th  Article  of  War.     Where  the  sen- 
tence is  for  a  year  or  less,  the  U.  S.  Penitentiary  is  not 
available  as  a  place  for  its  execution.1 

345.  If  a  prisoner  is  sentenced  to  a  penitentiary  he  be- 
comes subject  to  all  the  rules  and  discipline  prescribed  by 
law  for  the  institution,  including  those  which  require  labor, 
though  labor  may  not  have  been  specified  in  the  sentence. 

1  See  ante,  par.  313  and  A.  R.  974. 


164  MILITARY  LAW 

But  in  prisons  other  than  penitentiaries  a  prisoner  sen- 
tenced to  imprisonment  without  "hard  labor"  being  in- 
cluded in  the  sentence  cannot  properly  be  put  to  unusual 
labor  of  a  severe  and  continuous  character;  but  he  may 
be  required  to  perform  the  ordinary  domestic  or  police 
work  directed  by  the  sanitary  regulations  of  the  prison.1 

346.  Solitary  Confinement. — In  addition  to  imprison- 
ment there  may  be  given,  as  punishment  for  enlisted  men 
only,   solitary   confinement,   or  solitary   confinement   on 
bread  and  water  diet.     Such  confinement  is  limited  to 
fourteen  days  at  one  time,  not  to  be  repeated  until  four- 
teen days  have  elapsed,  and  not  to  exceed  eighty-four  days 
in  one  year.2 

347.  Ball  and  Chain.— This  punishment  is  only  awarded 
in  extreme  cases  where  escape   is   feared  or  where  the 
prisoner  is  considered  to  be  of  a  desperate  or  dangerous 
character.     Such  a  sentence  should  state  the  weight  of 
the  ball  and  the  length  of  the  chain  to  which  it  is  to  be 
attached. 

348.  Imprisonment  after  Expiration  of  Term  of  Ser- 
vice.— An  officer  dismissed,  or  a  soldier  discharged,  by 
sentence  of  a  court-martial,  may  at  the  same  time  be 
sentenced  to  a  period  of  imprisonment  extending  beyond 
the  date  of  his  dismissal  or  discharge,  and  be  held  thereto 
notwithstanding  he  has  been  separated  from  the  mili- 
tary service.     Such  persons  are  no  longer  soldiers  but 
military  piisoners  or  convicts,  offenders  legally  sentenced 
for  violation  of  the  laws  of  the  United  States. 

349.  A  soldier  may  also,  without  discharge   attached 
thereto,  be  sentenced  to  a  term  of  imprisonment  extend- 
ing beyond  his  term  of  enlistment,  and,  notwithstanding 
its  expiration,  may  be  held  until  he  has  completed  the 
term  of  imprisonment  to  which  he  has  been  sentenced. 

1  Dig.  Op.  J.  A.  G.  1464. 

2  G.  O.  96,  War  Department,  1905,  Article  VII;  Court-martial  Man- 
ual, pp.  49,  59. 


PUNISHMENTS  165 

It  is  always  preferable,  however,  that  the  court  award 
dishonorable  discharge  preceding  the  sentence  of  imprison- 
ment when  it  accompanies  it.  If  the  sentence  does  not 
award  " dishonorable  discharge"  the  discharge  of  the 
soldier  is  dated,  and  takes  effect,  on  the  date  of  expira- 
tion of  the  enlistment  but  is  not  delivered  until  expira- 
tion of  the  sentence.1 

350.  Fine. — A  fine  differs  from  a  forfeiture  or  stoppage, 
in  that  it  is  a  fixed  sum  which  must  be  paid  and  is  not 
deducted  from  pay  due  or  to  become  due.     It  is  espe- 
cially recognized  as  a  form  of  punishment  in  the  60th 
Article  of  War.   It  is  usually  accompanied  in  the  sentence 
by  a  provision,  in  order  to  enforce  collection,  that    the 
person  convicted  shall  be  imprisoned  until  the  fine   is 
paid,  or  until  a  fixed  period  ofj  time,  considered  as  an 
equivalent  punishment,  has  expired.     These  fines  as  well 
as  forfeitures  accrue  to  the  United  States,  and  cannot 
be  imposed  or  collected  for  the  benefit  of  any  individuals. 

351.  Forfeitures. — A  forfeiture  is  the  losing  of  the  right 
to  pay,  allowances,  etc.,  through  some  act  to  which  such 
penalty  attaches,  or  through  sentence  of  a  court-martial. 
Such  as  attach  through  the  operation  of  law  are  effective 
whether  included  in  the  sentence  of  a  court-martial  or 
not,  such  as  forfeiture  of  pay  by  deserters,  if  convicted, 
etc.     Other  forfeitures  can  only  be  imposed  under  legal 
sentences  of  a  court-martial,  and  the  character  and  amount 
of  the  forfeiture  adjudged  must  be  explicitly  stated  in  the 
sentence;  there  can  be  no  forfeiture  by  implication.     For- 
feiture  runs   only  so  long  as  the  soldier  remains  in  the 
service  under  his  current  enlistment ;  his  discharge  operates 
as  a  remission,  and  any  balance  due  cannot  be  collected 
if  he  should  re-enlist.     When  a  forfeiture  is  adjudged  the 
sentence  should  distinctly  state  that  it  is  of  a  certain 
specified  sum  from  pay  due  or  to  become  due,  or,  if  cover- 

1  For  classification  of  prisoners,  see  ante,  par.  317. 


166  MILITARY  LAW 

ing  more  than  the  amount  of  one  month's  pay,  that  the 
forfeiture  is  of  a  specified  sum  per  month  (not  larger 
than  the  monthly  pay  of  the  accused),  for  a  specified  num- 
ber of  months;  or  it  may  be  the  forfeiture  of  all  pay,  or 
of  all  monthly  pay  and  allowances,  for  a  certain  number 
of  months. 

Where  the  forfeiture  is  of  pay  or  any  part  thereof  for 
a  certain  number  of  months  it  stops,  for  each  of  those 
months,  the  amount  stated.  A  forfeiture  of  ten  dollars 
of  monthly  pay  for  one  year  would  mean  a  forfeiture  of 
$120.00. 

352.  When  the  sentence  is  silent  as  to  the  date  of 
commencement  of  the  forfeiture  it  will  begin  with  the 
period  for  which  pay  has  accrued  since  last   payment. 
A  forfeiture  not  limited  by  the  sentence  to  any  particular 
month  or  months  or  other  space  of  time,  but  expressed 
simply  as  a  forfeiture  of  so  many  months'  pay,  or  of  a 
certain  amount  of  pay,  is  legally  chargeable  against  pay 
due  and  payable  at  the  next  payment,  and  the  balance, 
if   any,  against    pay   accruing  thereafter,  until   the  for- 
feiture is  fully  satisfied.1 

353.  Where  an  accused  is  brought  to  trial  under  a 
charge  of  desertion  and  acquitted,  or  convicted  of  "ab- 
sence without  leave"  only,  any  amount  paid  as  a  reward 
for  his  arrest  is  not  stopped  against  his  pay  unless,  in  case 
of  conviction  of  absence  without  leave,  the  sentence  of  the 
court  shall  so  direct.     In  such  case  the  sentence  should 
direct  the  charge  against  him  to  take  the  form  of  a  stop- 
page, and  not  a  forfeiture.2    If  convicted  of  desertion,  or 
if  restored  to  duty  without  trial,  the  expenses  incurred  in 
his  apprehension  and  delivery,  including  the  cost  of  trans- 
portation of  the  guard,  will  be  set  against  his  pay.3 

If  a  soldier  be  brought  to  trial  for  absence  without 

1  A.  R.  984;  G.  O.  135,  War  Department,  1905. 

2  A.  R.  126;  G.  O.  144,  War  Department,  1906. 

3  A.  R.  125. 


PUNISHMENTS  167 

leave  and  convicted,  or  for  desertion  and  is  convicted  of 
absence  without  leave  only,  the  soldier  will  be  charged 
with  the  expense  of  transportation  of  himself  and  guard 
to  his  proper  station.  It  is  not  necessary  for  the  court 
to  include  this  charge  in  its  sentence.  The  company  com- 
mander will  make  the  charge  without  the  action  of  the 
court.1 

354.  All  fines   and   forfeitures   revert   to    the   United 
States;    courts-martial  have  no  power  or   authority  to 
compel  payment  of  civil  claims,  or  of  personal  indebted- 
ness, except  to  the  United  States. 

355.  Stoppages. — A  stoppage  differs   from   a   fine   or 
forfeiture  in  that  it  is  not  a  punishment  awarded  but  a 
reimbursement,  and  may  be  made  without  the  sentence 
of  a  court-martial,  as  well  as  if  included  therein,  when 
made  in  pursuance  of  law  or  regulations.     It  is  a  deduc- 
tion made  from  the  pay  or  allowances  of  a  person  in  mili- 
tary service  for  the  purpose  of  reimbursement  to  the 
proper  bureau  or  department  of  the  United  States  for 
loss  or  damage  to  public  property  pertaining  thereto.     It 
may  also  be  made  in  certain  cases,  under  the  provisions 
of  law,  for  the  Soldiers'  Home;2  for  the  payment  of  indebt- 
edness to  tailors;3  to  traders  and  laundrymen  at  depots 
for  recruits;4  for  repairs  of  damages  done  to  arms,  equip- 
ment, or  implements;5  purchases  of  articles  from  the  sub- 
sistence department  on  credit;6   or  tobacco;7   for  clothing 
overdrawn;8  and  for  the  Post  Exchange.9    Stoppage  may 

1  Court-martial  Manual,  p.  49;  A.  R.  125. 

2  Sec.  4818,  4819,  Rev.  Stat.     This  deduction  is  not  now  applicable 
to  retired  enlisted  men.     Appropriation  Act,  June  12,  1906;  G.  O.  115 
and  144,  War  Department,  1906;  A.  R.  1397. 

3  Sec.  1220,  R.  S. 

4  Act  June  30,  1882;  G.  O.  72,  H.  Q.  A.,  1882.     See  also  A.  R.  346*; 
G.  O.  159,  War  Department,  1906. 

6  Sec.  1303,  R.  S. 

6  Sec.  1300,  R.  S. 

7  Sec.  1301,R.  S. 

8  Sec.  1302,  R.  S. 

9  A.  R.  350. 


168  MILITARY  LAW 

also  be  made  to  repay  injuries  done  to  citizens,  under  the 
authority  of  the  54th  Article  of  War,  and  in  this  case  if 
the  particular  offender  or  offenders  be  not  discovered 
the  amount  may  be  apportioned  among  the  entire  com- 
mand. 

356.  Stoppages  are  entered  upon  the  muster  and  pay 
rolls  of  enlisted  men,  and  the  signing  of  the  rolls  is  considered 
as  an  acceptance  of  the  charge  by  them.     Officers  are 
notified  of  stoppages,  which  must  be  made  under  the  au- 
thority of  the  Secretary  of  War,  and  they  are  removable 
only  when  collected,  or  the  deficiency,  or  other  fact  caus- 
ing the  stoppage,  is  satisfactorily  explained.1 

357.  If  there  is  any  dispute  or  question  as  to  the  re- 
sponsibility for  loss  or  damage  it  is  usual  to  convene  a 
board,  or  designate  a  surveying  officer,  to  investigate  and 
fix  the  responsibility  for  the  amount  of  damage  or  loss; 
and  if  there  has  been  any  criminal  responsibility  connected 
therewith,  or  it  has  resulted  from  neglect  of  duty,  the 
court-martial  on  trial  thereof  may  fix  the  pecuniary  liabil- 
ity also. 

358.  Reprimand. — This  sentence  is  usually  awarded  to 
officers  only,  and  for  minor  offenses  where  a  mild  penalty 
is  to  be  inflicted.     It  is  not  appropriate  for  enlisted  men, 
though  authorized,2  and  is  seldom  awarded  them.     The 
proper    authority    to    administer   the   reprimand   is    the 
authority    who    approves    the    sentence,    and    he    may 
vary  it  in  severity  or  mildness  according  to  his  views  of 
the  case. 

359.  Dishonorable  Discharge. — This   sentence   is   ap- 
plicable to  enlisted  men  only  and  must  be  awarded  by  a 
general  court-martial.     It  operates,  when  executed,  as  a 
complete  separation  from  his  honorable  status  as  a  soldier 
of  the  Army;   but  he  remains  a  military  prisoner,  subject 
to  military  jurisdiction,  during  the  period  of  his  confine- 

1  A.  R.  1336,  1337.  2  Court-martial  Manual,  p.  48. 


PUNISHMENTS  169 

ment  if  any  has  been  awarded  him  in  a  sentence  which 
has  been  duly  approved  by  the  proper  authority.  It  takes 
effect  when  he  receives  notice  thereof,  actual  or  construct- 
ive; actual  delivery  of  the  discharge  paper  itself  is  not 
necessary.  Where  confinement  has  been  included  in  the 
sentence  the  certificate  of  discharge  is  held  in  custody  of 
the  post  commander,  or  other  proper  officer,  until  the 
confinement  is  executed  and  is  then  delivered. 

360.  Dishonorable  discharge  is  a  discharge  from  the 
military  service  as  a  punishment, — a  complete  expulsion 
from  the  Army, — and  closes  all  accounts  and  responsibil- 
ities, except  under  the  provisions  of  the  60th  Article  of 
War,  and  if  the  person  afterward  fraudulently  re-enlists 
he  cannot  be  tried  for   an    offense    committed   during  a 
previous  enlistment;    even  if  he  has  deserted,  the  dis- 
honorable   discharge    prevents    trial    therefor.1      But  an 
honorable  discharge,  or  a  discharge  without  honor,  marks 
the  termination  of  that  contract  of  enlistment  to  which  it 
relates  only,  and  does  not   relieve   the   soldier  from  the 
consequences  of  a  desertion  committed  during  a  prior  en- 
listment; but  it  does  discharge  him  from  amenability  for 
all  offenses,  including  desertion,  charged  against  him  for 
that  particular  term   of   enlistment,  except   as  provided 
in  the  60th  Article  of  War.2 

361.  When  a  soldier  is  convicted,  on  one  arraignment, 
of  two  or  more  offenses,  none  of  which  are  punishable, 
under  the  provisions  of  Article  II  of  the  Executive  Order 
prescribing  limits  of  punishment  or  by  the  custom  of  the 
service,  with  dishonorable  discharge,  but  the  aggregate 
term  of  confinement  for  which,  as  specified  in  said  article, 
may  exceed  six  months,  dishonorable  discharge  with  for- 
feiture of  pay  and  allowances  may  be  awarded  in  addition 
to  the  authorized  confinement.3 

1  Dig.  Op.  J.  A.  G.  1167. 

3  Id.  1166. 

8  G.  O.  96,  War  Department,  1905,  Article  IV. 


170  MILITARY  LAW 

362.  Reduction  to  Ranks. — Non-commissioned  officers 
may  be  reduced  to  the  ranks,  but  a  non-commissioned 
officer  not  sentenced  to  reduction  shall  not  be  subject  to 
confinement.1     The  sentence  of  reduction  should  always, 
therefore,  precede  that  relating  to  confinement.     A  non- 
commissioned officer  convicted  of  an  offense  not  punish- 
able with  reduction  may,  upon  proof  of   one  previous 
conviction  within  the  prescribed  period,  be  sentenced  to 
reduction  in  addition  to  punishment  already  authorized.2 

363.  Reduction  in  Grade. — First-class  privates  may  be 
reduced  to  second-class  privates  in  all  cases  where  for 
like  offenses  on  the  part  of  non-commissioned  officers 
their  reduction  in  grade  is  now  authorized.3 

364.  Deprivation    of   Certificates    of   Eligibility    for 
Appointment   as   Second   Lieutenant. — The  rights  and 
privileges  of  enlisted  men  arising  from  certificate  of  eligi- 
bility for  promotion  to  second  lieutenant  in  the  Army 
may  be  vacated  by  the  sentence  of  a  general  court-martial.4 

365.  Substitution   of    Punishments. — The   Executive 
Order  prescribing  limits  of  punishment  5  provides  (Article 
VII)  for  substitutions  for  punishments  named  in  Article 
II  of  that  order,  at  the  discretion  of  the  court,  at  fixed 
rates  as  follows: 

Two  days'  confinement  at  hard  labor  may  be  substi- 
tuted for  one  dollar  of  forfeiture,  or  the  reverse;  one 
day's  solitary  confinement  on  bread  and  water  diet  for 
two  days'  confinement  at  hard  labor  or  for  one  dollar  of 
forfeiture. 

366.  Punishment  for  Offense  Committed  while  in 
Confinement  after  Discharge. — All  soldiers  sentenced  by 
court-martial  to  dishonorable  discharge  and  confinement 

1  G.  O.  96,  War  Department,  1905,  Article  VII. 

2  Id.,  Article  III,  Sec.  6. 
8  Id.,  Article  III,  Sec.  7. 
4  A.  R.  32. 

1  G.  O.  96,  War  Department,  1905. 


PUNISHMENTS  171 

remain,  until  discharged  from  such  confinement,  subject 
to  the  Articles  of  War  and  other  laws  relating  to  the 
administration  of  military  justice.1 

367.  Prohibited  Punishments. — "  Excessive  fines  "  and 
" cruel    and    unusual    punishments"    are    forbidden    by 
Article  VIII,   Amendments  to   the  Constitution  of  the 
United  States,  and  while  this  is  binding  upon  the  judicial 
system  of  the  United  States  and  not  upon  courts-martial, 
which  are  no  part  of  the  judicial  system,  yet  such  pro- 
visions are  intended  to  preserve  the  personal  rights  and 
liberties  of  citizens  living  under  the  Constitution;    and 
they  should  be  observed,  even  though  not  binding,  when- 
ever not  inconsistent  with  the  preservation  of  discipline 
and  the  organization  of  the  Army.     Punishments  which 
are    cruel,    unusual,    or    excessive    in    character    should 
never    be   awarded    by  a    court-martial    under  its  dis- 
cretionary powers,  and  if  they  should  be,  it  would  be  the 
duty  of  the   reviewing   authority   to   set    the    sentence 
aside. 

368.  Certain  punishments  are   specifically   prohibited 
by  the  98th  Article  of  War,  which  provides  that : 

Article  98. — No  person  in  the  military  service  shall  be 
punished  by  flogging,  or  by  branding,  marking,  or  tattoo- 
ing on  the  body.2 

369.  Certain  sentences  and  punishments  are  also  pro- 
hibited by  orders  and  regulations.     Sentences  imposing 
tours  of  guard  duty  are  forbidden,3  as  are  also  punish- 
ments which  require  the  carrying  of  a  heavy  log.     Sen- 
tences to  wear  a  ball  and  chain  are  not  to  be  awarded 
except  in  extreme  cases.4 

But  punishment  by  solitary  confinement,  or  confine- 
ment upon  a  diet  of  bread  and  water,  is  recognized  in  the 

1  Act  June  18,  1898. 

2  See  post,  par.  805. 
•  A.  R.  972. 

4  Court-martial  Manual,  p.  49. 


172  MILITARY  LAW 

Executive  Order  of  the  President  published  June  19,  1905, 
Article  VII,  which  limits  solitary  confinement  so  that 
it  "  shall  not  exceed  fourteen  days  at  one  time,  nor  be 
repeated  until  fourteen  days  have  elapsed,  and  shall 
not  exceed  eighty-four  days  in  one  year."  1 

1  G.  O.  96,  War  Department,  1905. 


CHAPTER  XXII 
VOTING— RECOMMENDATION  TO  CLEMENCY 

370.  The  Articles  of  War  prescribe  the  method  of  voting 
in  courts-martial  as  follows : 

Article  95. — Members  of  a  court-martial,  in  giving  their 
votes,  shall  begin  with  the  youngest  in  commission. 

This  requirement  applies  to  all  important  questions 
requiring  the  decision  of  the  court  by  vote,  and  is  espe- 
cially important  in  voting  upon  the  rinding  and  the  sen- 
tence. It  does  not  prescribe  whether  the  voting  shall 
be  by  ballot  or  viva  voce,  and  in  the  majority  of  cases 
the  latter  form  is  used.  The  necessity  for  beginning 
with  the  youngest  in  commission  is  apparent  from  the 
fact  that  the  junior  members,  being  generally  of  less  ser- 
vice and  experience  than  their  superiors  in  rank,  might 
be  unduly  impressed  by  their  vote,  whereas  justice  to 
the  accused  requires  entire  freedom  of  opinion. 

371.  In  all  cases,  except  of  the  death  penalty,  which 
requires  the  concurrence  of  two-thirds  of  the  members 
of  a  general  court-martial,1  a  majority  vote  decides  the 
question  before  the  court. 

372.  Voting  upon  Charges. — In  voting  upon  the  charges 
and  specifications  the  president  of   the  court  takes  the 
vote  by  reading  the  first  charge  and  its  specifications,  and, 
beginning   with   the   first   specification   of   that   charge, 

1  Art.  96.     See  post,  pan  803. 

173 


174  MILITARY  LAW 

notes  the  vote  of  each  member,  beginning  with  the  young- 
est in  commission,  and  announces  the  result  to  the  court; 
he  then  proceeds  in  like  manner  with  the  second  specifi- 
cation and  with  each  following  specification,  until  there 
is  a  rinding  upon  all,  when  he  proceeds  to  take  the  vote 
in  like  manner  upon  the  charge  itself. 

If  there  be  more  than  one  charge,  each  charge  with  its 
specifications  is  proceeded  with  in  a  similar  manner  until 
all  have  been  voted  upon. 

373.  Every  member,  being  duly  sworn  to   "try  and 
^determine"  the  matter  before  the  court,  must  vote;  there 
is  no  authority  that  can  excuse  a  member  from  voting 
upon  every  question  requiring  determination  by  the  court. 

374.  Voting   upon   the  Sentence. — The   fact   that    a 
minority  has  voted  "not  guilty"  upon  the  charge  and 
specification  will  not  excuse  them,  in  any  case  of  dis- 
cretionary punishment,  from  voting  upon  a  sentence;  in 
which  case  the  majority  vote  also  determines  it. 

375.  Where  the  death  penalty  is  mandatory  upon  the 
finding  of  "guilty,"  as  in  the  57th  Article  of  War,  writers 
seem  to  differ  on  the  question  as  to  whether  if  a  majority 
has  voted  "guilty"   this  is  conclusive  upon  the  other 
members  of  the  court  and  they  must  vote  the  sentence 
required  by  law. 

It  would  seem,  in  such  cases,  and  it  is  so  held  by  some 
writers,  that,  the  sentence  being  mandatory  upon  the 
finding,  the  latter  carries  with  it  the  sentence,  and  there- 
fore the  finding  of  "guilty"  should  itself  be  by  a  two- 
thirds  vote  of  the  members  of  the  court. 

This  appears  to  be  the  just  and  proper  view  of  the 
question,  for  there  would  be  no  need  for  the  law  requiring 
the  two-thirds  vote  if,  in  cases  of  persons  convicted  of  an 
offense  where  the  mandatory  and  only  punishment  is 
death,  the  finding  of  "guilty"  by  a  majority  alone  could 
compel  the  sentence.  The  law  was  intended  for  the  pro- 


VOTING— RECOMMENDATION  TO  CLEMENCY         175 

tection  of  the  prisoner  and  should  be  liberally  construed 
in  his  favor  rather  than  against  him. 

376.  Tie  Vote. — In    the    proceedings    of    deliberative 
bodies  whenever  there  is  a  tie  vote  the  affirmative  prop- 
osition is   lost.      So  in  courts-martial,  if  there  is  a  tie 
vote  on  the  finding,  the  question  being  "is  he  guilty/' 
the  result  is  in  favor  of  the  accused  and  it  is  recorded  as 
"not  guilty."     In  a  similar  manner  in  a  vote  upon  the 
sentence  a  tie  vote  means  that  the  sentence  is  lost.     The 
accused  is,  however,   always  entitled  to  the  benefit  of 
equal  division  of  opinion,  and  as  the  vote  has  been  upon 
a  sentence  supposedly  milder  than  the  one  to  follow, 
it  is  proper  to  reconsider  such  a  vote,  and,  generally,  recon- 
sideration will  produce  a  majority  in  favor  of,  or  opposed 
to,  the  sentence.     A  tie  vote  on  a  motion  or  on  any  objec- 
tion is  a  vote  in  the  negative,  and  the  motion  or  objection 
is  not  sustained. 

377.  Vote,  How  Recorded. — In  every  case  the  result  of 
the  vote  is  recorded  as  the  action  of  the  court,  and  no 
protest  or  difference  of  opinion  is  permitted  to  appear  in 
the  proceedings  which  would  tend  to  disclose  the  vote  or 
opinion  of  any  member. 

378.  Recommendation    to  Clemency. — The  sentence 
appropriate  to  the  offense  having  been  awarded  in  any 
case,  one  or  more  members  of  the  court  may  feel  that 
circumstances  connected  with  it,   as  developed  by  the 
evidence,  may  justify  clemency  on  the  part  of  the  re- 
viewing officer,  and  a  less  severe  punishment  than  that 
awarded  by  the  court. 

In  such  circumstances  a  recommendation  to  clemency 
may  be  submitted  to  the  reviewing  authority  signed  by  all 
the  members  of  the  court  desiring  to  join  in  such  recom- 
mendation, and  it  will  be  forwarded  with  the  record,  but 
not  as  a  part  thereof,  though  it  should  be  appended  thereto 
after  the  exhibits  referred  to  in  the  proceedings. 


176  MILITARY  LAW 

No  such  recommendation  should  be  made,  however, 
without  good  reason  therefor,  nor  without  careful  con- 
sideration, and  the  grounds  upon  which  it  is  based  should 
be  stated;  such  as,  previous  good  character  of  the  accused, 
long  and  faithful  service,  absence  of  deliberate  criminal 
intent,  or  the  long  period  he  has  already  been  in  confine- 
ment before  trial,  etc. 


CHAPTER  XXIII 
THE  RECORD 

379.  Courts-martial  being  courts  of  inferior  and  limited 
jurisdiction,  it  must  be  made  to  appear  clearly  and  af- 
firmatively, in  order  to  give  effect  to  their  judgments, 
that  the  court  was  legally  constituted,  that  it  had  juris- 
diction of  the  person  and  the  offense  charged,  that  the 
judgment  imposed  was  conformable  to  law,1  and  that  the 
statutory   rules   with   regard  to  jurisdiction  have  been 
complied  with. 

380.  The  record  of  a  court-martial,  in  any  case,  is  the 
complete  history  of  the  composition,  organization,  and 
the  proceedings  of  the  court  in  that  case.    It  must  state 
the  facts  which  give   the  court  jurisdiction.    It  must 
appear  therein  that  the  court  was  legally  organized,  was 
composed  of  members  eligible  to  sit  upon  it,  that  it  had 
jurisdiction  over  the  person  of  the  accused,  and  of  the 
offense  with  which  he  is  charged,  and  that  its  proceedings 
have  been  conducted  in  accordance  with  the  laws,  orders, 
customs  of  the  service,  and  regulations  governing  its  pro- 
cedure.    Any  lack  of  jurisdiction  will  render  its  judgments 
void,  and  violations  of  the  requirements  of  law  will  consti- 
tute a  fatal  defect;  while  failure  to  comply  with  orders, 
customs,  and  regulations   governing  its  procedure   may 
cause  its  proceedings  to  be  wholly  or  partly  disapproved, 

1  Hamilton  v.  McClaughry,  136  Fed.  Rep.  445. 

177 


178  MILITARY  LAW 

and  the  judgment  of  the  court  modified  or  wholly  annulled 
by  the  reviewing  authority. 

381.  To  enable  the  reviewing  authority,  whose  approval 
is  necessary  to  give  life  and  force  to  the  judgment  of  the 
court,  to  act  advisedly  upon  the  proceedings,  the  record 
thereof  must  be  full  and  complete.     It  is  required  that 
every  court-martial  shall  keep  a  complete  and  accurate 
record  of  its  proceedings,  which  will  be  authenticated,  in 
each  case,  by  the  signatures  of  the  president  and  judge- 
advocate.    In  case  of  the  death  or  disability  of  the  judge- 
advocate  after  the  court  has  decided  on  the  sentence,  and 
the  record  cannot  be  authenticated  by  his  signature,  it 
must  show  that  it  has  been  formally  approved  by  the  court 
and  must  be  authenticated  by  the  signature  of  the  presi- 
dent.    The  judge-advocate  should  also  affix  his  signa- 
ture to  each  day's  proceedings.1 

If  the  death  or  disability  of  the  judge-advocate  occurs 
during  the  trial  of  a  case  the  fact  is  reported  to  the  con- 
vening authority,  and  proceedings  are  suspended  until 
another  judge-advocate  is  appointed  or  a  new  court 
ordered. 

If  the  president  of  a  court-martial  should  die  or  be  dis- 
abled, the  next  senior  in  rank  takes  his  place,  and  though 
any  member  be  lost  through  any  cause,  so  long  as  a  quorum 
remains  the  trial  should  be  proceeded  with.  The  pro- 
ceedings will  be  signed  by  that  member  of  the  court  who 
is  president  at  the  conclusion  of  the  trial. 

382.  The  record  is  usually  written  in  black  ink,  but 
may  be  written  on  the  typewriter  using  the  copyable 
ribbon  when  practicable.2 

The  finding  and  sentence  should  be  entered  on  the 
record  by  the  judge-advocate  himself,  and  in  his  own 
handwriting  rather  than  by  typewriting. 

383.  The  record  of  each  case  being  required  to  be 

1  A.  R.  987.  2  A.  R.  988. 


THE  RECORD  179 

separate  and  complete,  it  must  show  that  the  court  was 
sworn  for  the  trial  of  that  particular  case.  It  is  not  a 
compliance  with  law  to  swear  the  court  at  its  organization 
for  the  trial  of  such  cases  as  have  been,  or  may  be,  re- 
ferred to  it,  even  if  all  the  accused  are  present  in  the  room, 
and  the  members  are  not  objected  to;  the  oath  must  be 
administered  in  each  case  in  its  turn  as  it  comes  before  the 
court,  after  the  accused  has  had  his  opportunity  to  chal- 
lenge the  members. 

384.  The  proceedings   are   headed    "  Proceedings  of   a 
general  court-martial  convened  at  Fort  -       — ,  pursuant 

to  the  following  order :  (Headquarters  Department , 

G.  0.  No.  -       -,  etc.)" 

The  order  is  then  inserted  in  full  upon  the  record  and  it 
must  appear  therefrom  that  it  was  issued  by  an  officer 
competent  to  convene  such  court-martial,  and  that  its 
members  are  eligible  to  sit  upon  the  court  for  the  trial  of 
that  case.  The  number  of  members,  and  their  relative 
rank  with  reference  to  the  accused,  is,  however,  deter- 
mined by  the  convening  authority,  his  decision  being  con- 
clusive, and  he  also  names  the  judge-advocate. 

If  there  has  been  any  modification  of  this  order  such 
later  orders  or  modifications  are  also  then  read  and  en- 
tered upon  the  record. 

385.  Date  and  Place  of  Meeting ;  Members  Present. — 
The  date  and  place  of  meeting  with  the  names  and  rank 
of  the  members  present  and  of  the  judge-advocate,  and 
of  those  members  absent,  with  cause  of  absence,  if  known, 
are  then  recorded,  together  with  any  preliminary  busi- 
ness necessary  to  be  transacted  in  connection  with  the 
case.     The  order,  or  a  certified  copy  thereof,  authorizing 
the  absence  of  a  member,  if  any  be  received,  is  then 
inserted,  or  it  may  be  appended  and  referred  to  by  its 
number,  headquarters  whence  issued,  date,  etc.,  the  refer- 
ence showing  that  it  is  so  appended  and  giving  its  proper 


180  MILITARY  LAW 

reference  mark.  If  the  absence  is  caused  by  sickness,  a 
surgeon's  certificate  should  be  furnished  by  the  absent 
member  and  be  appended. 

386.  Changes  in  Membership  of  Court. — If  there  be  any 
change  made  in  the  membership  of  a  court-martial  during 
the  period  of  trial  of  any  case,  the  fact  of  such  change,  and 
a  copy  of  the  order  or  orders  making  it,  are  entered  in 
full  on  the  record.     If  a  new  member  be  added  it  must 
show  that  the  accused  had  opportunity  to  object  to  him, 
and,  if  admitted  to  membership,  that  he  was  duly  sworn, 
and  that  the  record  made  preceding  the  time  of  his  taking 
his  seat  was  read  to  him  that  he  might  have  knowledge 
of  the  case  so  far  as  it  had  proceeded  without  him. 

387.  Introduction  of  the  Accused;   Challenges. — The 
order   convening   the   court,   and   modifications   thereof, 
being    entered  the  record    then  shows  the  introduction 
of  the  accused  whose  trial  is  to  be  proceeded  with,  that 
he,  and  his  counsel,  if  he  has  one,  are  present  before  the 
court  and  that  the  order  convening  the  court  is  read  to 
him,  and  that  he  has  an  opportunity  to  object  to  trial 
by  any  of  the  members  present. 

388.  The  accused,  if  he  challenge  at  all,  must  challenge 
but  one  member  at  a  time,  and  the  challenge  must  be 
"for  cause  stated." 

The  ground  of  challenge  will  be  entered  upon  the  record, 
together  with  the  reply  of  the  challenged  member,  if  he 
make  any,  or  his  statement  under  voir  dire  if  he  be 
examined  thereunder.  If  the  accused  requests  that  the 
member  be  placed  upon  his  voir  dire  the  judge-advocate 
swears  him,  the  record  stating  that  he  was  then  duly 
sworn  by  the  judge-advocate  and  testified  as  follows: 
(All  questions  asked  and  answers  thereto  being  recorded 
as  given  by  him.) 

The  oath  administered  to  the  challenged  member  is  as 
follows:  "You  swear  that  you  will  true  answers  make  to 


THE  RECORD  181 

questions  touching  your  competency  as  a  member  of  the 
court  in  this  case.     So  help  you  God." 

389.  His  statement  being  accepted,  or  the  examination 
under  voir  dire  being  concluded  in  any  case,  the  record 
shows  that  the  court  was  then  closed,  the  challenged  mem- 
ber, the  accused,  his  counsel,  and  the  judge-advocate  with- 
drawing; and,  upon  re-opening,  that  they  were  recalled 
and  the  president  announced  the  decision  of  the  court, 
stating  it  so  that  it  may  be  recorded.     If  the  objection 
was  sustained  the  record  shows  that  the  member  then 
withdrew  from  the  court. 

The  record  must  also  show  that  after  all  the  challenges 
have  been  acted  upon  there  still  remains  a  quorum  of 
at  least  five  members  for  the  trial  of  the  case. 

390.  Swearing   the  Members  and  the  Judge-Advo- 
cate.— All  challenges  having  been  decided,  and  a  quorum 
remaining,  the  record  must  show  that    the  members   of 
the  court  and  the  judge-advocate  were  then  duly  sworn, 
in  the  presence  of  the  accused.1 

391.  Arraignment;  Pleas. — The  record  must  then  show 
that  the  accused  was  duly  arraigned   upon  the  charges 
and  specifications,2  a  copy  thereof  being  entered  in  full 
in  the  body  of  the  record. 

392.  If  there  be  any  special  plea,  as  in  bar  of  trial,  etc.,3 
made  by  the  accused,  it  will  be  at  this  time,  and  it, 
and  all  statements  and  actions  taken  under  it,  must  be 
recorded  together   with   the   final  determination  of  the 
matter  by  the  court. 

393.  These  pleas  being  disposed  of,  or  not  being  made, 
the  plea  to  the  general  issue  is  in  order,  and  such  pleas 
are  recorded  consecutively  as  follows: 

To  the  1st  specification,  1st  charge,  -       — , 
Tothe2d  "  "  —, 

1  See  ante,  par.  174. 

2  See  Arraignment,  ante,  par.  177. 
8  See  Pleas,  Chapter  XIV. 


182  MILITARY  LAW 

and  so  on  to  all  the  specifications  which  follow  in  their 
numbered  order,  and  then: 

To  the  1st  charge,  — ; 

To  the  1st  specification  2d  charge,  -       — , 
Tothe2d  "  "  -, 

and  after  all  specifications  thereof  are  pleaded  to, 
To  the  2d  charge,  — . 

If  there  are  other  charges  and  specifications,  the  pleas 
are  recorded  in  like  manner.  Whatever  plea  is  made  to 
any  specification  or  charge  is  entered  fully  upon  the 
record,  the  accused  being  entitled  to  except  words  or 
phrases,  to  substitute  other  words  therefor,  and  to  plead 
guilty  to  part,  and  not  guilty  to  other  parts,  of  any 
charge  or  specification. 

This  arraignment  is  always  made  immediately  after  the 
court  and  the  judge-advocate  are  sworn,  and  is  so  recorded; 
if  made  before  the  taking  of  the  oath  by  the  court  and 
the  judge-advocate,  it  would  be  invalid  and  without  effect. 

394.  Testimony. — All  testimony  must  be  recorded  in 
full,  and  in  the  very  words  of  the  witness.     The  questions 
as  well  as  the  answers  thereto  are  entered  upon  the  record. 

395.  The  record  must  show  that  the  witness  introduced, 
for  prosecution  or  defense,  was  duly  sworn.1 

396.  The  first  question  asked  and  recorded  is  as  to  the 
name,  rank,  and  station  of  the  witness  himself,  and  the 
next  question  is  whether  he  knows  the  accused,  and,  if  he 
does,  his  answer  should  identify  him,  by  his  name,  rank, 
and  station. 

397.  The  questions  of  the  judge-advocate  are  recorded 
as  " question  by  the  judge-advocate,"  the  answers  simply 
as  "  answer."    Questions  and  answers  then  follow  in  order 
and  are  recorded  until  the  close  of  the  direct  examina- 
tion, when,  the  judge-advocate  having  finished,  the  accused 

1  For  oath  and  form  of  administration  thereof,  see  ante,  par.  238-239. 


THE  RECORD  183 

is  entitled  to  cross-examine  the  witness,  and  this  is  headed 
" cross-examination/'  and  the  questions  asked  are  recorded 
as  " question  by  the  accused,"  whether  asked  personally 
by  him  or  by  his  counsel  for  him. 

If  the  accused  does  not  desire  to  cross-examine,  the 
record  states  that  "the  accused  declined  to  cross-examine 
the  witness." 

Similar  proceedings  are  recorded  in  the  case  of  every 
witness  introduced. 

If  the  testimony  of  the  witness  is  read  over  to  him  at  his 
request  or  by  direction  of  the  court,  that  fact  and  the 
corrections  made,  if  any,  should  be  stated,  referring  to  the 
original  testimony  which  remains  on  the  record  as  taken. 

When  the  judge-advocate  has  closed  his  prosecution,  he 
so  announces,  the  record  stating  that  the  "judge-advocate 
then  announced  that  the  prosecution  here  rested." 

398.  Witnesses  introduced  for  the  defense  are  sworn,  as 
for  the  prosecution,  by  the  judge-advocate,  and  the  first 
questions  recorded  are  those  by  the  judge-advocate,  as 
to  the  name,  rank,  and  station  of  the  witness  and  of  the 
accused,  in  order  to  establish  their  identity.     The  ques- 
tions for  the  defense  following  are  recorded  as  "question 
by  the  accused,"  and  on  the  cross-examination  "question 
by  judge-advocate."     If  the  latter  does  not  cross-examine, 
it  should  be  stated  "the  judge-advocate  declined  to  cross- 
examine  the  witness." 

399.  If  the  accused  testifies  as  a  witness  in  his  own  be- 
half, it  is  essential  that  the  record  show  that  "it  was  at  his 
own  request."  1 

400.  Objections  may  be  made  to  questions,  or  to  answers 
thereto,  and   any  interlocutory   matter  upon  which  the 
court  acts  during  the  trial  must  be  fully  recorded,  with  the 
action  of  the  court  thereon,  in  its  proper  place  in  the  pro- 
ceedings. 

1  See  ante,  par.  262  et  seq. 


184  MILITARY  LAW 

If  any  question  or  answer  is  objected  to  by  either  party, 
the  objection  and  the  grounds  therefor  must  be  stated, 
with  the  reply  thereto,  if  any,  and  both,  with  the  action  of 
the  court,  must  be  entered  upon  the  record.  If  the  court 
has  been  closed  for  deliberation  on  the  subject,  the  record 
so  states,  and  that  the  judge-advocate,  the  accused,  and  his 
counsel  withdrew,  and  that  on  the  re-opening  of  the  court 
the  president  announced  its  decision,  which  decision  is 
then  entered  upon  the  record. 

401.  If  a  question  is  asked  by  a  member  and  objected  to 
by  another  member,   or  by  the  judge-advocate  or  the 
accused,  and  the  objection  is  sustained  by  the  court,  it  is 
not  answered  and  is  recorded  as  " question  by  a  member"; 
but  if  the  objection  made  is  not  sustained,  the  question  is 
repeated  by  the  judge-advocate  and  recorded  as  "  question 
by  the  court."     Any  question  which  the  court  decides  to 
ask  is  not  open  to  objection  from  any  source,  and  must  be 
answered. 

402.  Statement. — The  accused  having  no  further  evi- 
dence to  offer  so  states,  and  the  fact  is  entered  upon  the 
record.     He  may  then  make  a  verbal  statement,  which 
must  be  entered  upon  the  record  as  made,  or  submit  a 
written  statement  which  is  read  to  the  court.     If  he  sub- 
mits a  written  statement,  as  is  usual,  it  should  be  signed, 
but  not  sworn  to,  by  the  accused  and  will  be  appended  to 
the   proceedings,   the  record  stating  that   "the   accused 
then  submitted  a  written  statement  in  his  defense  which 
was  read  to  the  court  and  is  hereto  appended  marked 
'A,'  'B,'  or'C,'"  etc. 

403.  All  documents  or  papers  submitted  to    and  re- 
ceived by  the  court  and  forming  part  of  its  proceedings 
are  attached  thereto  as  appendices,  each  marked,  in  the 
order  of  its  reception,  as  Exhibit  "A,"  "B,"  or  "C,"  etc., 
and  reference  is  made  to  them,  according  thereto,  in  the 
body  of  the  record  as  above.     The  papers  received  with 


THE  RECORD  185 

the  charges  and  submitted  to  the  court,  or  copies  thereof, 
are  appended  to  the  proceedings;  all  others,  received  but 
not  submitted  to  the  court,  are  returned  with  the  charges, 
which  also  enclose  the  record  of  the  court,  the  endorsement 
of  the  judge-advocate  being  made  upon  the  charges  that 
they  have  been  duly  tried  and  that  the  record  of  the  trial 
is  enclosed  therewith. 

Documents  submitted  and  not  received,  as  being  irrele- 
vant or  unimportant  in  connection  with  the  case,  are  re- 
ferred to  in  the  record  by  simply  stating  their  character 
and  the  grounds  of  their  rejection,  and  are  not  required 
to  be  attached  to  the  record. 

404.  Reply   of  the    Judge-Advocate. — If   the   judge- 
advocate  submits  the  case  without  any  remarks  or  reply  to 
the  statement  of  the  accused,  the  record  so  states.     But  if 
he  sums  up  the  case  for  the  prosecution,  as  he  is  entitled 
to  do,  his  remarks,  if  verbal,  must  be  entered  upon  the 
record  in  full,  or,  if  written  and  read  by  him,  it  is  stated 
that  the  judge-advocate  submitted  (in  writing)  and  read 
to  the  court  his  reply,  or  remarks  upon  the  case,  which 
is  appended,  marked  "B"  or  "C,"  etc. 

405.  Finding. — There  being  nothing  further  submitted 
by  either  party,  and  the  court  desiring  no  further  evidence 
in  the  case,  the  record  must  show  that  the  judge-advocate, 
the  accused,  and  his  counsel  then  withdrew  and  the  court 
was  closed,  and  finds  the  accused,  naming  him  and  his 
rank  exactly  as  stated  in  the  charges  and  specifications : 

Of  the  1st  specification,  1st  charge,  -       — , 
Ofthe2d  "  "  — , 

and  so  for  each  succeeding  specification. 

Of  the  1st  charge,  . 

Similar  record  is  made  for  each  of  the  succeeding  charges 
in  their  regular  order. 


186  MILITARY  LAW 

406.  Previous  Convictions. — If  the  accused,  being  an 
enlisted  man,  has  been  found  guilty  and  the  case  is  one 
where   the  punishment  is  left   to   the   discretion  of  the 
court-martial  under  the  Articles  of  War,  and  the   pro- 
visions  of    the   Executive   Order    establishing   limits   of 
punishment  are  applicable,  the  record  must  then  show 
that  the  judge-advocate  and  the  accused  were  thereupon 
recalled,  the  court  opened,  and  that  the  judge-advocate 
stated  that  he  had  no  evidence  of  previous  convictions  to 
submit,  or,  if  he  has  received  any,  that  the  judge-advo- 
cate   then   read   the    evidence   of   previous    convictions, 
copies  of  the  records  of  which  are  appended  to  the  pro- 
ceedings marked  Exhibit  "C,"  "D,"  etc. 

The  court  is  then  again  cleared  and  closed,  and  proceeds 
to  vote  upon  the  sentence,  which  being  determined,  the 
record  then  states  that  the  judge-advocate  was  there- 
upon recalled,  and  the  court  at  such  an  hour  proceeded 
to  other  business,  or  adjourned  to  a  certain  date  and 
hour,  or  to  meet  at  the  call  of  the  president,  or,  if  all 
work  is  completed,  that  it  adjourned  sine  die. 

407.  Sentence. — If  the  punishment  is  not  discretionary, 
or  the  accused  is  found  not  guilty,  or,  in  the  case  of  an 
officer  or  cadet,  the  court  is  not  re-opened   to   receive 
evidence  of  previous  convictions,  but   proceeds  directly 
to  the  sentence  or  acquittal,  the  sentence  stating  that 
the    court    does    therefore    sentence    him — stating    the 
name,  rank,  etc.,   of  the   accused   precisely  as  given  in 
the    finding — to    whatever    sentence    accords    with    the 
offense  as  prescribed  by  law  and  orders.1     If  the  sentence 
is  "death,"  the  record  must  explicitly  state  that  two- 
thirds  of  the  members  concurred  therein.2 

If  the  accused  is  found  not  guilty,  the  record  shows, 
after  the  finding,  that  the  court  does,  therefore,  acquit 

1  See  Sentence  and  Punishment,  Chapter  XX,  and  Forms  for  Sen- 
tences, Appendix  E5  10. 

2  Court-martial  Manual,  p.  60. 


THE  RECORD  187 

him,  stating  the  name,  rank,  etc.,  precisely  as   in    the 
finding. 

408.  When  the  sentence  is  determined  upon,  the  judge- 
advocate  is  then  recalled,  without  .the  presence  of  the 
accused  at  this  time,  simply  for  the  purpose  of  informing 
him  of  the  sentence  and  enabling  him  to  prepare  the 
record;    it  would  be  illegal  and  improper  for  him  to  be 
before  the  court,  in  the  absence  of  the  accused,  during  its 
consideration  of  the  case. 

409.  Authentication  of  Record. — The  complete  record 
when  written  out  is  authenticated  by  the  signatures  of 
the  president  and  the  judge-advocate.1     But  the  court, 
as  a  whole,  is  responsible  for  ths  record,  and  it  should 
be  read  to  and  approved  by  the  court  before  the  presi- 
dent and  judge-advocate  sign  it.     At  least   two  blank 
pages  will  be  left  after  the  adjournment  and  before  the 
appendices  for  the  action  of  the  reviewing  authority. 

410.  Recommendation  to  Clemency. — Members  sign- 
ing a  recommendation  to  clemency  2  transfer  the  same  to 
the  judge-advocate  to  be  appended  to  the  proceedings  for 
transmit tal    to    the    reviewing    authority.     The    original 
charges,  statement  of  service,  and  other  papers  forwarded 
with  the  original  charges,  not  attached  to  the  proceed- 
ings,  are  forwarded  with  the  record  which  the  judge- 
advocate   must    transmit   without    delay    to    the    officer 
having  authority  to  confirm  the  sentence.3 

411.  Adjournment. — The  record  being  completed  and 
approved  by  the  court  it  states  that,  at  such  an  hour, 
the  court  proceeded  to  other  business,  or  adjourned  to 
meet  at  a  certain  date  and  hour,  or  to  meet  at  the  call 
of  the  president.     If  it  has  no  more  business  to  transact, 
the   court   adjourns   sine  dw.    This   being  entered,   the 
entire  record  is  authenticated  by  the  signatures  of  the 
president  and  the  judge-advocate. 

1  See  ante,  par.  381.          2  See  ante,  par.  378.          3  A.  R.  989. 


188  MILITARY  LAW 

Adjournments  from  Day  to  Day. — Adjournments  from 
day  to  day,  during  the  trial  of  a  case,  are  signed  by  the 
j  udge-advocat  e .  After  such  adj  ournment  it  is  not  necessary 
to  enter,  on  re-conyening,  the  names  and  rank  of  each 
member,  the  judge-advocate,  etc.  As  the  record  at  the 
organization  of  the  court  shows  the  names  and  rank  of 
the  members  and  judge-advocate,  it  only  need  be  stated 
during  the  remainder  of  the  trial,  after  such  adjourn- 
ments, that  all  the  members,  the  judge-advocate,  the 
accused,  his  counsel,  and  the  reporter,  if  any,  were  present. 

If  any  member  is  absent,  whose  absence  is  not  already 
accounted  for,  the  record  here  shows  the  fact  of  his 
absence  and  the  authority  therefor,  if  known. 

Recess. — After  a  recess,  which  is  noted  on  the  record, 
it  should  be  stated  that  the  members  of  the  court,  the 
judge-advocate,  the  accused,  his  counsel,  and  the  reporter, 
resumed  their  seats. 

412.  Forwarding  Records  of  General  Court-martial. — 
The  entire  record,  when  completed  and  authenticated,  is 
promptly  forwarded  by  the  judge-advocate  to  the  con- 
vening authority,  as  an  enclosure  to  his  endorsement  upon 
the  charges,  stating  that  they  have  been  duly  tried  and 
that  the  record  of  the  trial  is  enclosed  therewith. 

The  proceedings  of  every  general  court-martial,  together 
with  the  accompanying  papers,  are  transmitted  to  the 
officer  having  authority  to  confirm  the  sentence,1  and 
when  acted  upon  by  him  they  must  be  forwarded,  with 
such  expedition  as  circumstances  will  permit,  to  the 
Judge-Advocate-General  of  the  Army,  in  whose  office  they 
are  to  be  carefully  preserved.2  Proceedings  of  courts- 
martial  convened  by  the  President  are  forwarded  direct 
to  the  Secretary  of  War.  Every  party  tried  by  a  gen- 
eral court-martial,  upon  demand  therefor  made  by  him- 
self or  by  any  person  in  his  behalf,  is  entitled  to  a  copy 

'A.R.  989.  2  Article  113. 


THE  RECORD  189 

of  the  proceedings  and  sentence  of  such  court.1  Appli- 
cation for  copies  under  this  Article  should  be  addressed 
to  the  Judge-Advocate-General. 

413.  Forwarding  Records  of  the  Inferior  Courts.— 
The  complete  proceedings  of  a  garrison  or   regimental 
court,  after  action  of  the  post  or  regimental  commander 
thereon,  will  be  forwarded  to  department  headquarters.2 
These  may  be  destroyed  at  the  end  of  two  years  after 
receipt.3    The   summary   court  record  is   kept   at   each 
military  post  and  in  the  field,  at  the  headquarters  of  the 
proper  command,  and  the  commanding  officer  makes  a 
monthly  report  to  the  department  headquarters  of  the 
cases  tried.4 

414.  Lost  Record. — Where  the  record  of  a  court-martial 
has  been  lost  before  the  action  of  the  reviewing  authority 
thereon,  the  proceedings  are  thus  terminated,  unless  the 
court  can  be  re-convened  and  a  new  record  made  from 
extant   original  notes.     But  where   they   are  lost  after 
the  action  of  the  reviewing  authority,  the  sentence  having 
been  confirmed  and  ordered  executed,  the  loss  does  not 
impair  or  affect  the  judgment  of  the  court,  and  consti- 
tutes no  legal  obstacle  to  the  enforcement  of  the  penalty.5 


REVISION     PROCEEDINGS 

415.  The  record,  having  been  received  by  him,  may  be 
found  by  the  reviewing  authority  to  have  some  defect, 
either  in  omission  to  record  some  material  fact  necessary 
to  insure  the  validity  of  its  judgment,  or,  in  his  opinion, 
the  finding  may  not  be  that  justified  by  the  evidence,  or 
the  sentence  be  inadequate  as  a  punishment  for  the  offense 

1  Article  114. 

2  A.  R.  990. 

3  Act  March  3,  1877. 

4  Act  June  18,  1898;  see  Appendix  E,  6. 
8  Dig.  Op.  J.  A.  G:,  par.  2139. 


190  MILITARY  LAW 

of  which  the  accused  is  found  guilty,  or  not  in  accordance 
with  law,  orders,  or  regulations. 

The  reviewing  officer,  in  such  case,  has  no  power  or 
authority  to  correct  the  record;  but  when  the  record  of  a 
court  exhibits  error  in  preparation,  or  seemingly  erroneous 
conclusions,  the  reviewing  authority  may  re-convene  the 
court  for  a  re-consideration  of  its  action,  pointing  out 
defects.1  In  the  order  or  endorsement  re-convening  the 
court  the  reviewing  authority  designates  the  errors  and 
defects  to  be  corrected,  stating  his  views  with  respect 
thereto,  and  sends  the  proceedings,  with  his  remarks,  to 
the  president  of  the  court,  who  informs  the  judge-advocate 
and  directs  him  to  notify  the  members  that  the  court  will 
re-convene  at  a  date  fixed  by  him,  which  should  be  as 
early  as  practicable.  If  the  omission  is  such  as  to  make 
his  presence  necessary,  as  in  the  correction  of  a  special  plea 
of  the  accused,  or  of  an  objection  taken  by  him,  the  accused 
is  also  notified  and  required  to  be  present  with  his  counsel 
if  he  desires  him. 

As  many  of  the  errors  or  omissions  are  purely  clerical 
and  as  the  correction  may  relate  to  the  finding  or  sentence 
which  is  considered  in  closed  court,  the  presence  of  the 
accused  is  not  generally  necessary  or  advisable,  but  when 
any  possible  injustice  may  result  from  his  absence  he 
should  be  required  to  be  present. 

416.  The  record  of  the  re-convening  of  the  court  and  its 
revision  proceedings  is  made  separate  and  distinct  from 
the  original  record.  It  contains  the  date  and  place  of 
meeting  and  a  copy  of  the  order  or  endorsement  pursuant 
to  which  it  is  re-convened  and  the  names  of  all  the  mem- 
bers present,  and  of  those  absent,  who  sat  on  the  trial, 
with  cause  of  absence,  if  known.  It  must  also  show  that 
the  judge-advocate  was  present. 

There  must  be  at  least  five  members  present  of  those 
1  A.  R.  -991. 


THE  RECORD  191 

who  acted  upon  the  trial,  together  with  the  judge-advocate. 
If  the  finding  and  sentence  are  to  be  revised,  all  who  voted 
thereon  ought,  if  possible,  to  be  present  on  revision.  Five 
members  who  acted  on  the  trial  will  constitute  a  legal 
quorum  and  their  final  action  will  be  the  action  of  the 
court,1  but  the  whole  court  should  be  present  if 
possible.2 

There  being  a  quorum  present,  the  judge-advocate  reads 
the  order  or  endorsement  re-convening  the  court  and,  if 
the  court  is  closed,  withdraws.  Whenever  the  court  is 
closed,  after  due  deliberation  it  is  re-opened,  the  judge- 
advocate  recalled,  and  the  president  of  the  court  announces 
its  action  which,  if  it  affects  the  finding  or  sentence,  may 
be  that  it  respectfully  adheres  to  its  former  finding  or 
sentence,  or  both,  or  it  revokes  the  former  finding  and 
finds  the  accused  as  follows :  (the  new  finding  being  here 
inserted);  or  it  may  state  that  it  revokes  its  former  sen- 
tence and  sentences  the  accused  as  follows:  (the  sentence 
being  here  inserted) ;  or  if  it  is  a  simple  amendment  to  the 
record  it  is  stated  that  the  court  amends  the  record  as  fol- 
lows: (the  amendment  being  here  inserted  with  reference 
to  the  page  and  line  of  the  original  record). 

417.  The  omission  corrected  must  be  one  in  fact,  a 
failure  to  record  an  actual  event  in  the  original  proceed- 
ing-. An  omission  or  irregularity  of  proceeding,  such  as 
failure  to  afford  the  accused  the  opportunity  to  challenge 
the  members  of  the  court,  or  the  omission  to  swear  the 
court  or  judge-advocate,  or  to  receive  the  pleas  of  the 
accused,  or  to  swear  a  witness,  cannot  be  repaired  by  any 
subsequent  revision. 

The  original  record  must  remain  just  as  it  was  when  for- 
warded to  the  reviewing  authority,  no  interlineations  or 
erasures  are  to  be  made  in  it  by  the  president,  the  judge- 

1  Dig.  Op.  J.  A.  G.  2251;  7  Op.  Attorney-General  338. 

2  See  Ben6t,  ed.  1868,  p.  174;  Simmons,  Sec.  723. 


192  MILITARY  LAW 

advocate,  by  the  court  itself,  or  by  any  member  thereof; 
any  such  act  would  constitute  a  grave  irregularity. 

418.  In  its  revision  of  the  record,  should  the  court  con- 
cur in  the  views  submitted,  it  will  proceed  by  amendment 
to  correct  its  error,  and  may  modify  or  completely  change 
its  findings,  when  necessary,  to  accord  with  such  correction. 
It  cannot,  however,  re-open  the  case  by  calling  or  re-calling 
witnesses,  as  such  action  would  be  illegal.1     The  record  of 
revision  will  be  appended  to   the  original  proceedings, 
following  them  immediately,  before  the  exhibits.2 

419.  There  is  no  limit  to  the  number  of  times  that  the 
record  may  be  returned  to  the  court  for  revision  and  the 
court  re-convened,  but  the  proposed  correction  is  wholly 
within  the  discretion  of  the  court;  the  reviewing  authority 
cannot  compel  the  court  to  make  the  correction  nor  dictate 
its  action.3 

If  the  court  has  been  dissolved,  it  is  no  longer  in  exist- 
ence as  a  court  and  cannot  be  re-convened.  Correction  or 
modification  of  its  record  will,  therefore,  be  impossible 
in  such  cases. 

420.  Record  of    Garrison   and  Regimental   Courts- 
martial. — The  form  of  record  of  the  garrison  and  regi- 
mental court-martial  is  similar  to  that  of  the  general 
court-martial  except  that  "  testimony  taken  before  regi- 
mental or  garrison  courts-martial  will  not  be  reduced  to 
writing."  4 

421.  Record  of  Summary  Court. — Forms  for  the  sum- 
mary court  record,5  and  for  the  monthly  report  of  cases 
tried,  are  furnished  from  the  War  Department  by  the 
Military  Secretary. 

1A.  R.  991. 

2  See  Appendix  E,  4. 

3  Dig.  Op.  J.  A.  G.  2250. 

4  A.  R.  987. 

5  See  Appendix  E,  5,  6. 


THE  RECORD  193 


DISPOSITION   OF  RECORDS  1 

422.  The  Judge-Advocate-General  revises   and  is  the 
custodian  of  the  records  of  the  proceedings  of  all  general 
courts-martial,  courts  of  inquiry,  and  military  commis- 
sions.2    The   original   records  of   proceedings,   with   the 
decisions  and  orders  of  the  reviewing  authorities  made 
thereon,  and  also  the  records  of  proceedings  of  all  general 
courts  which  require  confirmation  by  the  President  but 
which  have  not  been  appointed  by  him,  will  be  forwarded 
direct  to  the  Judge- Advocate-General.     One  copy  of  the 
order  promulgating  the  action  of  the  court,  and  a  copy  of 
every  subsequent  order  affecting  the  case,  will  be  for- 
warded to  the  Judge- Advocate-General,  with  the  record  of 
each  case.     When  more  than  one  case  is  embraced  in  a 
single  order,  a  sufficient  number  of  copies  will  be  for- 
warded to  enable  one  to  be  filed  with  each  record.    The 
proceedings  of  all  courts  and  military  commissions  ap- 
pointed by  the  President  will  be  sent  direct  to  the  Secre- 
tary of  War.3 

423.  "Applications  of  officers,  enlisted  men,  and  military 
prisoners   for   copies   of   proceedings   of   general   courts- 
martial,  to  be  furnished  them  under  the  114th  Article  of 
War,  will,  when  received  by  post  or  other  commanders, 
be  forwarded  direct  to  the  Judge- Advocate-General."  4 

424.  "Communications  relating  to  proceedings  of  mili- 
tary courts  on  file  in  the  Judge-Advocate-General's  De- 
partment  will   be   addressed   and   forwarded   direct   by 
department  commanders  to  the  Judge- Advocate-General. 
In  routine  matters  the  Judge-Advocate-General  and  judge- 
advocates  may  correspond  with  each  other  direct."  5 

1  Court-martial  Manual,  p.  72. 

2  Sec.  1199,  R.  S.;  A.  R.  922. 
8  A.  R.  924. 

4  Id.  926. 
6  Id.  927. 


194  MILITARY  LAW 

425.  Judge-advocates  of  departments  are  the  custodians 
of  the  reports  of  cases  tried  by  summary  courts  l  and  of 
all  proceedings  of  garrison  or  regimental  courts-martial.2 

426.  Post  commanders  will,  on  the  last  day  of  each 
month,  make  a  report  to  the  department  headquarters  of 
the  number  of  cases  determined  by  summary  court  during 
the  month,  setting  forth  the  offenses  committed  and  the 
penalties  awarded.3    "The  complete  proceedings  of  a  gar- 
rison or  regimental  court  will  be  transmitted,  without 
delay,  by  the  post  or  regimental  commander  to  depart- 
ment headquarters."  4 

427.  The  reports  of  cases  tried  by  summary  courts  and 
records  of  other  inferior  courts  will  be  filed  in  the  office  of 
the  judge-advocate  at  the  headquarters  of  the  department 
commander  in  whose  department  the  courts  were  held, 
the  records  of  garrison  and  regimental  courts  to  be  re- 
tained for  two  years,  at  the  end  of  which  time  they  may 
be  destroyed;  5  the  summary  court  reports  may  be  de- 
stroyed "when  no  longer  of  use."  6 

1  Act  of  June  18,  1898,  establishing  the  summary  court.     See  Appen- 
dix B. 

2  Act  of  March  3,  1877  (19  Stat.  at  Large,  310). 

3  Act  of  June  18,  1898,  Sec.  4.     See  Appendix  B. 

4  A.  R.  990. 

5  Act  of  March  3,  1877  (19  Stat.  at  Large,  310). 

6  Act  of  June  18,  1898. 


CHAPTER  XXIV 
THE  REVIEWING  AUTHORITY1 

428.  The  proceedings  of  a  court-martial  as  signed  by 
the  president  and  judge-advocate  thereof  are  not  final;  its 
sentence  cannot  be  enforced  until  approved  by  the  proper 
reviewing  authority,  such  action  being  provided  for  by  the 
following  article  of  war : 

Article  104. — No  sentence  of  a  court-martial  shall  be 
carried  into  execution  until  the  same  shall  have  been 
approved  by  the  officer  ordering  the  court,  or  by  the 
officer  commanding  for  the  time  being. 

It  is  also  required,  by  A.  R.  989,  that  the  officer  having 
authority  to  confirm  the  sentence  will  state  at  the  end  of 
the  proceedings  in  each  case  his  decision  and  orders.  For 
this  purpose  the  judge-advocate  leaves  at  least  two  blank 
pages  in  the  proceedings,  immediately  following  the  record 
of  adjournment. 

The  Article  quoted  above  limits  approval  to  "the  officer 
ordering  the  court"  or  "the  officer  commanding  for  the 
time  being."  The  officers  authorized  to  order  general 
courts-martial  are  designated  by  the  Articles  of  War,2 
and,  in  special  case,  for  the  trial  of  cadets  at  the  Military 
Academy,  by  Sec.  1326,  Revised  Statutes  United  States. 
Those  who  may  convene  regimental  and  garrison  courts, 

1  See  Sentence  and  Punishment,  ante,  par.  310  et  seq.;  and  Pardon 
or  Mitigation  of  Punishment,  post,  par.  446  et  seq.,  and  post,  par.  811. 

2  Articles  72  and  73.     See  post,  par.  779,  780. 

195 


196  MILITARY  LAW 

and  the  summary  court,  are  designated  by  the  81st  and 
82d  Articles  of  War  and  by  the  Summary  Court  Act, 
approved  June  18,  1898.1  The  rank  of  those  who  may 
convene  general  courts-martial  is  stated  in  Article  72  as 
"any  general  officer  commanding  an  army,  a  territorial 
division,  or  a  department,  or  colonel  commanding  a  sepa- 
rate department,"  so  that  an  officer  of  lower  rank  cannot 
convene  such  courts  under  that  Article.  But  the  rank  of 
"the  officer  commanding  for  the  time  being "  is  not  fixed, 
that  expression  being  indefinite  as  to  rank,  and  therefore 
an  officer  of  lower  rank  than  colonel  may,  if  "in  com- 
mand for  the  time  being,"  act  upon  the  proceedings  and 
sentence  of  a  court  ordered  by  a  preceding  commander 
authorized  to  do  so,  though  he  cannot  himself  convene 
such  a  court. 

429.  The  Army  Regulations  now  provide  that  in  the 
event  of  the  death,  or  disability,  of  the  permanent  com- 
mander of  a  territorial  division  or  department,   or  his 
temporary  absence  from  the  limits  of  his  command,  the 
senior  line  officer  present  and  on  duty  therein  will  exercise 
the  command  of  the  division  or  department,  unless  other- 
wise ordered,  until  relieved  by  proper  authority.    Yet 
an  absent  division  or  department  commander  may  con- 
tinue to  discharge  the  more  important  functions  of  his 
command,  but  his  exercise  of  command  and  his  absence 
therefrom  will  in  such  case  require  the  sanction  of  higher 
authority.2 

430.  The  73d  Article  of  War -authorizes  the  commander 
of  a  division  or  a  separate  brigade,  in  time  of  war,  to 
appoint   general   courts-martial.     The   commander   of   a 
division  under  our  organization  is  properly  a  major-general, 
and  the  commander  of  a  brigade  a  brigadier-general,  but 
an  officer  of  less  rank  may  become  by  virtue  of  seniority, 
or  assignment,  the  commander  of  a  division  or  brigade, 

1  See  Military  Tribunals,  ante,  Chapter  III.  2  A.  R.  193. 


THE  REVIEWING  AUTHORITY  197 

and,  as  such,  empowered,  under  this  Article,  to  appoint 
general  courts-martial  and,  under  Article  104,  will  have 
authority  to  approve  the  sentence  of  such  court.1 

431.  Where  a  department  has  been  merged  into  an- 
other, or  into  a  division,  the  commander  of  the  new  depart- 
ment or  division  will  be  "the  officer  in  command  for  the 
time  being"  and  empowered  to  act  upon  the  proceedings 
and  sentence  of  a  court-martial  previously  convened  by 
the  commander  of  the  former  department  now  within  the 
limits  of  his   command.     And  where   a  post  has  been 
abandoned   the    department   commander  will   act   upon 
the  proceedings  of  inferior  courts  duly  convened  prior 
thereto  and  requiring  approval . 

This  Article  (104)  limits  the  act  of  approval  to  the 
persons  indicated  in  it,  and  they  cannot  delegate  their 
power.  A  staff  officer  cannot,  therefore,  act  in  the  name 
or  by  the  authority  of  the  officer  ordering  the  court,  or 
"  officer  commanding  for  the  time  being." 

432.  The  approval  indicated  in  the  Article  refers  to  the 
sentence  alone,  and  it  is  not  necessary  in  order  to  carry  the 
sentence  into  effect   that  the  reviewing  officer  approve 
the  whole  proceedings;  he  may  in  fact  disapprove  certain 
parts  thereof  and  yet  approve  the  sentence;   he  may  ap- 
prove some  findings  and  disapprove  others  in  the  same 
case.2    Whenever,    however,    he   deems   the   proceedings 
erroneous  in  any  material  particulars,  or  ill-advised,  he 
may  re-convene  the  court  for  correction  of  the  defect. 
If  he  regards  the  sentence  as  inadequate  he  may  not  add 
to  the  punishment  imposed,  but  he  may  re-assemble  the 
court  for  revision  thereof,  stating  why  he  considers  it 
inadequate.3 

433.  The  action  of  the  reviewing  authority  is  necessary 
to  give  life  to  the  sentence,  so  that  in  cases  where  the 

1  See  Winthrop,  Vol.  1,  p.  77. 

2  Carter  v.  McClaughry,  183  U.  S.  365,  384. 

3  Dig.  Op.  J.  A.  G.  2230,  2231. 


198  MILITARY  LAW 

Articles  of  War  1  provide  that  the  sentence  shall  not  be 
carried  into  effect  until  confirmed  by  a  superior  authority, 
if  the  sentence  is  disapproved  by  the  immediate  review- 
ing authority,  it  is  without  effect,  being  nullified  in  law 
by  that  act,  and,  there  being  nothing  for  the  superior 
authority  to  act  upon,  it  is  not  necessary  for  the  record 
to  be  transmitted  to  him  for  his  action.2 

434.  The  action  of  the  reviewing  authority  upon  the 
sentence  is  either  of  approval  or  disapproval,  and  this  may 
be  stated  without  comment  or  he  may  make  such  re- 
marks in  connection  therewith  as  he  believes  justified  by 
the  facts  in  the  case  as  shown  by  the  record;  but  it  is 
not  necessary  that  he  should  give  any  reason  for  his 
action  either  in  approval  or  disapproval.  He  must,  how- 
ever, endorse  his  action,  with  the  date  thereof,  on  the  pro- 
ceedings, at  the  end  thereof,  so  that  it  becomes  a  part  of 
the  final  record,  and  must  sign  such  action  in  his  own 
handwriting  as  being  the  proper  reviewing  authority. 

The  date  is  important  as  indicating  the  time  when  the 
sentence  becomes  effective,  and  the  order  promulgating 
the  proceedings  will,  when  practicable,  bear  the  same 
date  as  the  action  of  the  reviewing  authority.  When  this 
is  not  practicable,  the  order  will  give  the  date  of  the  action 
of  the  reviewing  authority  as  the  date  of  the  beginning  of 
the  sentence.  This  does  not,  however,  apply  to  sentences 
of  forfeiture  of  all  pay  and  allowances;  3  nor  to  a  dis- 
honorable discharge,  wiiich  becomes  effective,  and  is  dated, 
the  day  on  which  the  order  is  received  at  the  place  where  it 
is  to  be  executed ; 4  nor  to  sentences  of  dismissal  of  officers, 
which  are  usually  made  to  take  effect  at  some  date,  after 
approval  thereof,  designated  by  the  President  or  Secretary 
of  War.  The  forfeiture  of  all  pay  and  allowances  due  an 

1  Articles  105,  106,  107,  108,  109. 

2  Dig.  Op.  J.  A.  G.  2229. 

3  A.  R.  978. 

4  Dig.  Op.  J.  A.  G.  1155. 


THE  REVIEWING  AUTHORITY  199 

accused  refers  to  all  that  is  due  on  the  date  on  which  the  sen- 
tence takes  effect  and  which  has  accumulated  prior  thereto. 

435.  The  proceedings  of  general  courts-martial  in  cases 
of  officers,  and  in  important  cases  of  enlisted  men,  are 
published  in  general  orders  from  the  proper  headquarters. 
Cases  of  enlisted  men  that  are  not  of  general  interest  or 
importance  are  published  in  special  orders.1 

436.  Execution  of  the  Sentence. — Authority   for   the 
execution  of  sentences  is  given  in  the  109th  Article  of  War, 
which  provides  as  follows: 

Article  109. — All  sentences  of  a  court-martial  may  be 
confirmed  and  carried  into  execution  by  the  officer  order- 
ing the  court,  or  by  the  officer  commanding  for  the  time 
being,  where  confirmation  by  the  President  or  by  the 
commanding  general  in  the  field,  or  commander  of  the 
department,  is  not  required  by  these  articles.2 

The  cases  in  which  confirmation  by  superior  authority 
is  required  are  stated  in  the  105th,  106th,  107th,  and 
108th  Articles  of  War.3  In  Articles  105,  106,  and  108, 
no  sentence  of  death,  with  the  exception  of  those  "in  time 
of  war,"  no  sentence  of  dismissal  of  an  officer  in  time  of 
peace,  and  no  sentence  respecting  a  general  officer  either 
in  time  of  peace  or  war,  can  be  carried  into  execution 
until  confirmed  by  the  President. 

437.  Article  105. — No  sentence  of  a  court-martial,  in- 
flicting the  punishment  of  death,  shall  be  carried  into 
execution  until  it  shall  have  been  confirmed  by  the  Presi- 
dent;  except  in  the  cases  of  persons  convicted  in  time  of 
war,  as  spies,  mutineers,  deserters,  or  murderers,  and  in 
the  cases  of  guerrilla  marauders,  convicted  in  time  of  war, 
of  robbery,  burglary,  arson,  rape,  assault  with  intent  to 
commit  rape,  or  of  violation  of  -the  laws  and  customs  of 
war;    and  in  such  excepted  cases  the  sentence  of  death 

1  A.  R.  992. 

2  See  post,  par.  816. 

3  See  post,  par.  812-815. 


200  MILITARY  LAW 

may  be  carried  into  execution  upon  confirmation  by  the 
commanding  general  in  the  field,  or  the  commander  of  the 
department,  as  the  case  may  be. 

This  Article  permits  the  execution  of  the  sentence  of 
death  in  the  above  cases,  when  war  is  being  carried  on,  by 
either  the  general  commanding  in  the  field,  or  by  a  depart- 
ment commander  engaged  in  carrying  on  war  with  the 
troops  in  his  department.  But,  in  time  of  peace,  proceed- 
ings which  involve  death,  or  dismissal  of  an  officer,  must, 
after  being  approved  by  the  convening  authority,  be  for- 
warded by  him  direct  to  the  Judge-Advocate-General  for 
the  action  of  the  President.1 

438.  Article  106. — In  time  of  peace  no  sentence  of  a 
court-martial,  directing  the  dismissal  of  an  officer,  shall 
be  carried  into  execution,  until  it  shall  have  been  con- 
firmed by  the  President. 

"This  Article  does  not  expressly  require  that  the  con- 
firmation of  the  sentence  shall  be  signed  by  the  President, 
nor  does  it  prescribe  any  form  in  which  the  confirmation 
shall  be  declared.  A  written  approval,  therefore,  of  a 
sentence  of  dismissal  authenticated  by  the  signature  of 
the  Secretary  of  War,  or  expressed  to  be  by  his  order,  is  a 
sufficient  confirmation  within  the  Article;  the  case  being 
deemed  to  be  governed  by  the  well-established  principle 
that  where,  to  give  effect  to  an  executive  proceeding,  the 
personal  signature  of  the  President  is  not  made  essential 
by  law,  that  of  the  head  of  the  department  to  which  the 
subject  belongs  shall  be  sufficient  for  the  purpose;  the 
assent  of  the  President  to  his  order  or  direction  being 
presumed,  and  his  act  being  deemed  in  law  the  act  of  the 
President  whom  he  represents."  2 

1  Court-martial  Manual,   p.  64;    Articles   105,  106,  108,  post,  par. 
812,813,  815. 

2  Davis'  Military  Law,  p.  545;  U.  S.  v.  Fletcher,  148  U.  S.  84;  U.  S. 
v.  Page,  137  U.  S.  673;  Dig.  Op.  J.  A.  G.  337,  and  note. 


THE  REVIEWING  AUTHORITY  201 

439.  Article   108. — No    sentence    of    a    court-martial, 
either  in  time  of  peace  or  in  time  of  war,  respecting  a  gen- 
eral officer,  shall  be  carried  into  execution  until  it  shall 
have  been  confirmed  by  the  President. 

This  Article  applies  to  all  sentences  of  any  kind  or  char- 
acter respecting  a  general  officer,  who  is  thereby  assured  of 
an  examination  of  his  case  by  the  highest  military  authority 
in  the  land  before  the  sentence  can  be  carried  into  execu- 
tion. The  President's  action  under  it,  though  judicial, 
need  not  be  evidenced  under  his  own  hand.1 

440.  The  articles  that  require  action  of  superior  author- 
ity other  than  that  of  the  President  are  Articles  105  and 
107. 

The  105th  Article  of  War,  which  has  been  inserted 
above,  provides  that  in  case  of  persons  convicted,  in  time 
of  war,  of  the  crimes  enumerated  therein,  the  sentence  of 
death,  approved  by  the  immediate  reviewing  authority, 
must  be  confirmed  by  the  commanding  general  in  the  field, 
or  the  commander  of  the  department,  as  the  case  may  be. 

If  the  war  is  being  carried  on  within  the  limits  of  an 
organized  department,  and  there  is  an  organized  division 
or  separate  brigade  acting  therein,  under  his  command, 
the  action  of  the  commander  of  such  division  or  separate 
brigade  approving  the  sentence  of  death  must,  in  the 
cases  indicated  in  this  Article,  receive  the  confirmation 
of  the  department  commander  before  being  executed. 

441.  Article  107. — No  sentence  of  a  court-martial  ap- 
pointed by  the  commander  of  a  division  or  of  a  separate 
brigade  of  troops,  directing  the  dismissal  of  an  officer, 
shall  be  carried  into  execution  until  it  shall  have  been 
confirmed  by  the  general  commanding  the  army  in  the 
field  to  which  the  division  or  brigade  belongs.2 

1  U.  S.  v.  Page,  137  U.  S.  673,  678,  680;  U.  S.  v.  Fletcher,  148  U.  S. 
84,  89.     See  post,  par.  815. 
3  See  post,  par.  814. 


202  MILITARY  LAW 

This  Article  also  refers  to  the  organization  of  troops  into 
divisions  and  brigades  in  time  of  war,  under  a  general 
commanding  the  army  in  the  field,  and  requires  the  sen- 
tence of  dismissal  of  an  officer,  which  has  been  approved 
by  the  commander  of  a  division  or  of  a  separate  brigade 
under  his  command,  to  be  confirmed  by  him. 

442.  Sentences  of  Courts-martial  for  Trial  of  Cadets. 
—All  legal  sentences  of  a  court-martial  convened  by  the 
Superintendent  of  the  United  States  Military  Academy 
for  the  trial  of  cadets  may  be  executed  by  him  except 
those  of  dismissal  or  suspension,  which  must  receive  the 
approval  of  the  President  before  being  carried  into  execu- 
tion.1 

AUTHORITY  FOR  THE  EXECUTION  OF  SENTENCES 

443.  The  reviewing  authority  may  pardon  or  mitigate 
the  sentence  of  a  court-martial,2  but  he  has  no  power  to 
commute  the  sentence,   or  to  change  the  character  or 
species  of  the  punishment  .imposed,  or  to  increase  it.     If, 
however,  the  sentence  of  the  court  is  in  excess  of  what 
the  law  allows,  he  may  approve  so  much  of  it  as  is  within 
the  legal  limits,  and  that  part  may  be  executed,  the  ex- 
cess being  null  and  void. 

Sentence  to  imprisonment  in  a  penitentiary,  if  legally 
adjudged,  may  be  changed  by  him  to  imprisonment  in  a 
military  prison,  this  being  considered  as  a  mitigation  and 
not  a  commutation  of  the  punishment  awarded. 

An  unexecuted  sentence,  or  any  part  thereof  remain- 
ing unexecuted,  may  be  remitted  or  mitigated;  but  an 
executed  sentence  is  beyond  the  power  of  remission  or 
mitigation. 

444.  It  is  not  necessary  for  the  reviewing  authority  to 
give  reasons  for  his  action  upon  the  sentence;   but  where 

1  Sec.  1326,  Revised  Statutes. 

2  Art.  112;  Sec.  3,  Act  June  18,  1898. 


THE  REVIEWING  AUTHORITY  203 

he  disapproves  it,  it  is  usual  for  him  to  do  so;  and  in  all 
cases  where  he  returns  the  proceedings  to  the  court  for 
revision  he  states  the  reasons  therefor,  for  the  considera- 
tion of  the  court.  It  is  not  necessary  for  his  disapproval 
that  the  proceedings  show  facts  making  the  trial  illegal; 
he  may  disapprove  them  for  any  irregularity  which,  in 
his  judgment,  has  prevented  justice  being  done  to  the 
accused,  or  to  the  prosecution;  and  his  action  cannot  be 
reversed  by  orders  from  any  higher  authority.  If  the 
sentence,  as  approved  by  him,  is  unwarranted  or  exces- 
sive, it  may  be  mitigated  or  remitted,  or  even  set  aside  if 
void  for  any  cause,  by  the  proper  higher  authority. 

445.  Suspension  of  Sentences. — Provision  has  been 
made  for  the  suspension  of  the  execution  of  the  sentence 
of  death,  or  of  dismissal  of  an  officer,  by  the  authority 
having  power  to  carry  it  into  execution,  by  the  following 
Article  of  War: 

Article  111. — Any  officer  who  has  authority  to  carry 
into  execution  the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  pleasure  of  the 
President  shall  be  known;  and,  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the  order 
of  suspension,  together  with  a  copy  of  the  proceedings  of 
the  court.1 

This  Article  refers  to  cases  arising  "in  time  of  war/' 
and  as,  under  the  112th  Article  of  War,2  the  reviewing 
authority  cannot  pardon  or  mitigate  the  punishment  of 
death,  or  of  dismissal  of  an  officer,  it  affords  opportunity 
for  exercise  of  the  executive  clemency  if  the  President 
thinks  proper  to  exercise  it,  and  which  the  reviewing 
authority  may  sometimes  think  desirable.  The  reviewing 
authority  must  have  approved  the  sentence  so  as  to  make 
it  effective  before  he  can  suspend  it;  it  is  not  a  sentence 
in  force  until  it  has  been  approved  by  the  proper  author- 

1  See  post,  par.  818.  2  See  post,  par.  819. 


204  MILITARY  LAW 

ity.  If  it  has  been  disapproved  by  him  it  is  of  no  effect 
and  there  is  no  sentence  remaining  to  suspend  or  transmit. 
Where  a  case  is  submitted  to  the  President  for  his  action 
under  this  Article,  he  may  approve  or  disapprove  the 
sentence  in  whole  or  in  part,  and,  if  he  approve,  may 
exercise  his  power  of  remission  or  mitigation.1 

1  Dig.  Op.  J.  A.  G.  340. 


CHAPTER  XXV 

PARDON    OR    MITIGATION  OF  PUNISHMENT— REVIEW 

OF   PROCEEDINGS  OF  COURTS-MARTIAL  BY 

CIVIL  COURTS 

446.  The  power  of  the  President  to  pardon  offenses 
against  the  United  States  is  unlimited  by  the  Constitution 
except  as  to  cases  of  impeachment.1 

The  punishment  imposed  by  the  sentence  of  a  court- 
martial  is  subject  to  pardon  or  mitigation  by  the  reviewing 
authority;  it  may  be  lessened  in  severity  but  never  in- 
creased by  him. 

The  power  to  "pardon"  and  to  "mitigate"  punish- 
ments adjudged  by  sentence  of  courts-martial  is  granted 
to  commanders  authorized  to  order  such  courts  by  Art. 
112  of  the  Articles  of  War,  and  by  Sec.  3,  Act  of  June 
18,  1898. 

Article  112. — Every  officer  who  is  authorized  to  order  a 
general  court-martial  shall  have  power  to  pardon  or  miti- 
gate any  punishment  adjudged  by  it,  except  the  punish- 
ment of  death  or  of  dismissal  of  an  officer.  Every  officer 
commanding  a  regiment  or  garrison  in  which  a  regimental 
or  garrison  court-martial  may  be  held  shall  have  power  to 
pardon  or  mitigate  any  punishment  which  such  court 
may  adjudge.2 

The  Act  of  June  18,  1898,  provides:  "Sec.  3.  That  the 
commanding  officers  authorized  to  approve  the  sentences 
of  summary  courts  and  superior  authority  shall  have 
power  to  remit  or  mitigate  the  same."  3 

1  Const.,  Art.  II,  Sec.  2.     2  See  post,  par.  819.     3  See  Appendix  B. 

205 


206  MILITARY  LAW 

447.  The  power  to  pardon  or  mitigate  punishment  im- 
posed by  a  court-martial,  vested  in  the  authority  which 
confirms  the  proceedings  or  the  corresponding  authority 
under  whose  jurisdiction  the  sentence  is  being  executed, 
extends  only  to  unexecuted  portions  of  a  sentence; l    an 
executed  sentence  is  not  subject  to  remission  or  mitigation. 

448.  Remission. — The  pardoning  power  herein  granted 
is  different  from  and  inferior  to  that  vested  in  the  Presi- 
dent by  the  Constitution.     Remission  is  of  the  quality  of 
pardon  but  of  an  inferior  degree,  the  power  to  pardon  in- 
cluding the  power  to  remit.     "The  attributes,  therefore, 
of  the  constitutional  pardoning  power  of  the  President 
will  be  found  to  characterize  in  a  measure  the  power  of 
remission  possessed  by  the  reviewing  officers,  who,  indeed, 
in  the  exercise  of  this  power,  may  be  regarded  as  the 
agents   or  representatives   of   the  Executive  in  military 

9  f    O 

cases. 

449.  Remission  is  relieving  the  person  from  a  punish- 
ment, or  the  unexecuted  portion  of  a  punishment,  but 
not  pardoning  the  offense  as  such  or  removing  the  dis- 
abilities or  penal  consequences  attaching  thereto  on  con- 
viction.    It  is  action  of  the  reviewing  authority  taken 
after  punishment  has  been  awarded.     The  pardoning  of 
" punishment,"  authority  for  which  is  vested  in  certain 
commanders  under  the  112th  Article  of  War,  is  remission, 
and  not  a  pardoning  of  the  " offense."  3 

Where  an  unconditional  remission  has  been  made  it 
cannot  be  recalled  and  the  sentence,  or  any  part  thereof 
that  has  been  remitted,  revived. 

450.  Mitigation. — The  power   to  mitigate,  unlike  the 
power  to  remit,  is  not  a  form  of  the  pardoning  power, 
but  "is  a  power  attached  as  an  incident  to  the  power  to 
order  courts  and  approve  and  execute  their  sentences, 
being  simply  a  discretion  vested  in  the  reviewing  authority 

1  A.  R.  950.       3  Winthrop,  Vol.  1,  p.  662.      8  Dig.  Op.  J.  A.  G.  2164. 


PARDON  OR  MITIGATION  OF  PUNISHMENT          207 

to  reduce,  when  deemed  by  him  just  or  expedient,  the 
measure  of  punishment  awarded  by  the  court."  l 

Mitigation  is  the  reduction  by  the  reviewing  authority 
of  the  punishment  adjudged  by  the  court,  by  reducing  it 
in  quantity  or  quality,  or  both,  without  changing  its 
species.  Imprisonment,  fine,  forfeiture  of  pay,  and  sus- 
pension, are  punishments  capable  of  mitigation.2  This 
power  is  exercised  by  the  reviewing  authority  at  the  time 
he  acts  upon  the  sentence  of  the  court-martial. 

451.  Where  the  sentence  awards  punishment  by  con- 
finement in  the  post  guard-house  or  a  military  prison,  the 
reviewing  authority  cannot  increase  the  punishment  by 
designating  a  penitentiary  as  the  place  of  confinement 
of  the  prisoner,  but  he  may  mitigate  a  sentence  to  the 
penitentiary,  if  legally  adjudged,  by  designating  the  post 
guard-house,  or  a  military  prison,  as  the  place  of  confine- 
ment. 

452.  A  department  commander  may  remit  or  mitigate 
the  unexecuted  sentences  of  enlisted  men  under  his  com- 
mand, notwithstanding  the  court  which  awarded  them 
was  convened  and  the  sentences  approved  by  the  com- 
mander of  another  department.3 

As  the  power  of  " mitigation"  is  exercised  at  the  time 
of  the  action  of  the  reviewing  authority  on  the  sentence 
adjudged,  the  later  action,  after  the  sentence  has  been 
approved  and  punishment  awarded,  relieving  the  person 
from  any  part,  or  all,  thereof,  partakes  of  the  character  of 
" remission."  4 

The  pardoning  power  conferred  by  the  Article,  which 
is  the  power  of  " remission/'  5  is  not  limited  in  its  exercise 
to  the  moment  of  approving  the  sentence,  but  may  be  em- 

1  Winthrop,  Vol.  1,  p.  662. 

2  Dig.  Op.  J.  A.  G.,  345. 

8  Cir.  20,  War  Department,  June  15,  1901. 
4  See  Dig.  Op.  J.  A.  G.  345. 
6  Id.  347. 


208  MILITARY  LAW 

ployed  as  long  as  there  remains  any  material  for  its  ex- 
ercise. 

A  department  commander,  or  other  proper  and  legal 
commander,  may  remit  at  any  time,  in  his  discretion, 
the  unexecuted  portion  of  the  sentence  of  any  soldier 
under  his  command,  imposed  by  a  court-martial  con- 
vened by  him  or  by  a  predecessor  in  command.1 

453*  Commutation. — Where,  as  in  cases  of  sentences  of 
death,  dismissal  of  an  officer,  or  dishonorable  discharge, 
there  can  be  no  lesser  degree  of  the  same  punishment  to 
which  the  sentence  may  be  reduced  by  way  of  mitigation, 
mercy  can  only  be  shown  by  the  substitution  of  some 
other  punishment,  different  in  nature,  for  that  named  in 
the  sentence,  and  such  action  is  a  change  of  penalty,  or 
commutation. 

454.  "The  power  to  commute  (or  remit)  sentences  of 
death,  or  dismissal  of  an  officer,  is  reserved  to  the  President,2 
and  a  military  commander  cannot  exercise  such  power 
even  where,  in  time  of  war,  he  is  authorized  to  approve 
such  a  sentence  and  carry  it  into  effect."  3  "  A  reviewing 
authority  other  than  the  President  is  not  empowered 
to  commute  a  punishment;  the  pardon  herein  specified 
(Art.  112)  is  remission,  which,  unlike  the  pardoning  power 
vested  in  the  President,  does  not  include  commutation  or 
conditional  pardon."  A  reviewing  officer,  for  example, 
cannot  commute  the  punishment  of  dishonorable  dis- 
charge, and,  as  such  punishment  awarded  by  itself  is  not 
susceptible  of  mitigation,  it  cannot  legally  be  reduced 
under  this  article.4  "But  a  legal  sentence  of  dishonor- 
able discharge,  forfeiture  of  all  pay  and  allowances  due, 
and  confinement  at  hard  labor  for  a  definite  period  may 
be  mitigated  by  the  authority  approving  such  sentence 

'S3e  Dig.  Op.  J.  A.  G.  344. 

2  Art.  112.     See  ante,  par.  446. 

3  Davis'  Military  Law,  p.  552.  • 

4  Dig.  Op.  J.  A.  G.  347. 


REVIEW  OF  PROCEEDINGS  BY  CIVIL  COURTS      209 

to  confinement  at  hard  labor  and  forfeiture  of  all  pay  and 
allowances  for  a  period  not  to  exceed  the  period  of  con- 
finement awarded  in  the  sentence."  1 

455.  An  application  for  clemency  in  case  of  a  general 
prisoner    sentenced    to    confinement    in    a    penitentiary, 
either  State  or  Federal,  will  be  forwarded  to  the  Secretary 
of  War  for  the  action  of  the  President.     The  power  to 
commute  sentences  imposed  by  military  tribunals,  not 
being  vested  in  military  commanders,  can  be  exercised 
by  the  President  only.2 

456.  Review   of  Proceedings   of   Courts-martial   by 
Civil  Courts. — When  a  court-martial  is  legally  constituted 
and  proceeds  within  its  legal  power,  its  proceedings  are 
not  subject  to  review  by  the  civil  courts.     It  is  only  when 
the  question  is  one  as  to  its  jurisdiction — its  legal  constitu- 
tion, observance  of  the  statutory  rules  prescribed  for  the 
exercise  of  its  jurisdiction,  or  the  legal  use  of  its  power 
of  punishment — that  such  review  may  be  had. 

The  civil  court  will  act  only  upon  the  question  of  "  juris- 
diction," and  if  it  finds  that  the  court-martial  had  it, 
such  courts  will  not  interfere  to  correct  errors  or  mistakes 
in  its  proceedings.  Mere  matters  of  procedure  cannot  be 
reviewed  by  them.  The  judgments  of  courts-martial  are 
as  final  and  conclusive  as  those  of  civil  tribunals  of  last 
resort.3 

The  action  of  the  court  upon  a  plea  of  the  statute  of 
limitations  is  a  part  of  the  proceedings  and  therefore 
cannot  be  reviewed  by  the  civil  courts.4 

457.  Writ  of  Habeas  Corpus. — Where  a  court-martial 
exceeds  its  jurisdiction  or  inflicts  punishment  forbidden  by 

1  Court-martial  Manual,  p.  65,  par.  8. 

2  A.  R.  950. 

5  In  re  McVey,  23  Fed.  Rep.  878;  Carter  v.  McClaughry,  183  U.  S. 
365;  Dynes  v.  Hoover,  20  How.  (61  U.  S.)  81;  Ex  parte  Reed,  100 
U.  S.  23;  In  re  Grimley,  137  U.  S.  147;  Carter  v.  Roberts,  177  U.  S.  496. 

4  In  re  Davison,  21  Fed.  Rep.  618;  Ex  parte  Townsend,  133  Fed. 
Rep.  74. 


210  MILITARY  LAW 

law,  a  writ  of  habeas  corpus  may  issue  in  cases  where 
confinement  has  been  imposed.  It  cannot  be  used,  how- 
ever, to  serve  the  purpose  of  a  writ  of  error.1 

458.  Writ  of  Prohibition. — Whether  the  civil  courts  of 
the  United  States  can  issue  a  writ  of  prohibition  to  courts- 
martial  or  not,  appears  to  be  an  open  question  which  the 
Supreme  Court  of  the  United  States  has  not  yet  decided.2 

The  object  of  a  writ  of  prohibition  is  to  prevent  a  court 
of  peculiar,  limited,  or  inferior  jurisdiction  from  assum- 
ing jurisdiction  of  a  matter  beyond  its  legal  cognizance. 
It  can  only  be  used  to  restrain  judicial  functions;  it  cannot 
be  granted  upon  the  ground  of  irregularities  in  the  pro- 
ceedings, or  for  insufficiency  of  the  charges  or  specifica- 
tions, or  to  correct  mistakes  of  a  court-martial  in  the  de- 
cision of  questions  of  law  or  fac£  under  its  jurisdiction;  3 
nor  is  the  fact  that  the  accused  has  been  tried  for  the 
same  act  by  the  civil  courts  a  proper  basis  for  a  writ  of 
prohibition.4 

But,  in  any  event,  and  in  any  of  the  courts,  the  writ 
cannot  be  issued  when  the  court-martial  has  jurisdiction 
of  the  case,  nor  can  it  be  made  to  take  the  place  of  a  writ 
of  certiorari,  or  writ  of  error  used  to  inquire  into  the 
matters  of  pleading  or  the  merits  of  the  case;  it  cannot 
be  made  use  of  to  correct  errors  of  law  or  fact  within  the 
jurisdiction  of  the  court. 

The  Supreme  Court  of  the  United  States  says  concern- 
ing it:  "This  court,  although  the  question  of  issuing  a 
writ  of  prohibition  to  a  court-martial  has  not  come  before 
it  for  direct  adjudication,  has  specifically  recognized  the 

1  Ex  parte  Milligan,  4  Wall.   (71  U.  S.)  2;  Carter  v.  McClaughry, 
183  U.  S.  365;    McClaughry  v.  Deming,   186   U.  S.  49;    Deming  v. 
McClaughry,  113  Fed.  Rep.  639.      See  Habeas  Corpus,  ante,  par.  225 
et  seq. 

2  See  Smith  v.  Whitney,  116  U.  S.  175,  176;   Foster's  Federal  Prac- 
tice, 2d  Ed.,  Sec.  362. 

3  Smith  v.  Whitney,  116  U.  S.  176. 

4  U.  S.  v.  Maney,  61  Fed.  Rep.  140. 


REVIEW  OF   PROCEEDINGS  BY  CIVIL   COURTS      211 

general  rule  that  the  acts  of  a  court-martial,  within  the 
scope  of  its  jurisdiction  and  duty,  cannot  be  controlled 
or  reviewed  in  the  civil  courts,  by  writs  of  prohibition  or 
otherwise."  1 

In  some  of  the  States,  however,  the  civil  courts  have 
issued  writs  of  prohibition  to  militia  courts-martial  con- 
vened under  the  laws  of  such  States.2 

1  Smith  v.  Whitney,  116  U.  S.  167,  177. 

2  American  and  English  Encyclopaedia  of  Law,  Vol.  23,  p.  222. 


CHAPTER  XXVI 
COURTS  OF   INQUIRY 

459.  The  court  of  inquiry  is  not  a  judicial  tribunal, 
though  assimilated  in  some  respects  to  the  court-martial 
in  its  composition,   organization,   power  to  compel   the 
attendance  of  witnesses,   and  to  receive  their  evidence 
under  the  sanction  of  an  oath.     It  is,  in  fact,  a  council, 
commission,  or  board  of  officers,  convened  for  the  purpose 
of  a  special  investigation  into  the  nature  of  a  transaction 
of,  or  accusation  or  imputation  against,  any  officer  or 
soldier. 

Its  inquiries  are  not  affected  by  any  limitations  of  time, 
and  Art.  103  of  the  Articles  of  War  cannot  be  pleaded  in 
bar  of  the  proceedings  as  it  may  be  in  cases  before  courts- 
martial.1 

460.  Its  existence  and  the  authority  under  which  it  acts 
are  derived  from  the  following  Articles  of  War: 

Article  115. — A  court  of  inquiry  to  examine  into  the 
nature  of  any  transaction  of,  or  accusation  or  imputation 
against,  any  officer  or  soldier,  may  be  ordered  by  the 
President  or  by  any  commanding  officer;  but,  as  courts 
of  inquiry  may  be  perverted  to  dishonorable  purposes, 
and  may  be  employed,  in  the  hands  of  weak  and  envious 
commandants,  as  engines  for  the  destruction  of  military 
merit,  they  shall  never  be  ordered  by  any  commanding 
officer  except  upon  a  demand  by  the  officer  or  soldier 
whose  conduct  is  to  be  inquired  of. 

Article  116. — A  court  of  inquiry  shall  consist  of  one  or 

1  See  ante,  par.  191. 

212 


COURTS  OF  INQUIRY  213 

more  officers,  not  exceeding  three,  and  a  recorder,  to  re- 
duce the  proceedings  and  evidence  to  writing. 

Article  117. — The  recorder  of  a  court  of  inquiry  shall  ad- 
minister to  the  members  the  following  oath:  "You  shall 
well  and  truly  examine  and  inquire,  according  to  the  evi- 
dence, into  the  matter  now  before  you,  without  partiality, 
favor,  affection,  prejudice,  or  hope  of  reward.  So  help 
you  God."  After  which  the  president  of  the  court  shall 
administer  to  the  recorder  the  following  oath:  "You, 
A.  B.,  do  swear  that  you  will,  according  to  your  best  abili- 
ties, accurately  and  impartially  record  the  proceedings  of 
the  court  and  the  evidence  to  be  given  in  the  case  in 
hearing.  So  help  you  God."  . 

Article  118. — A  court  of  inquiry,  and  the  recorder 
thereof,  shall  have  the  same  power  to  summon  and  ex- 
amine witnesses  as  is  given  to  courts-martial  and  the  judge- 
advocates  thereof.  Such  witnesses  shall  take  the  same 
oath  which  is  taken  by  witnesses  before  courts-martial, 
and  the  party  accused  shall  be  permitted  to  examine  and 
cross-examine  them,  so  as  fully  to  investigate  the  circum- 
stances in  question. 

Article  119. — A  court  of  inquiry  shall  not  give,  an  opin- 
ion on  the  merits  of  the  case  inquired  of  unless  specially 
ordered  to  do  so. 

Article  120. — The  proceedings  of  a  court  of  inquiry 
must  be  authenticated  by  the  signatures  of  the  recorder 
and  the  president  thereof,  and  delivered  to  the  command- 
ing officer.1 

461.  Composition. — The  court  of  inquiry  consists  of 
one  or  more  officers,  not  exceeding  three,  and  a  recorder, 
all  of  whom  are  sworn  to  a  faithful  and  impartial  per- 
formance of  their  duties.2  The  rank  of  the  officers  who 
are  members  relative  to  that  of  the  person  under  accusa- 
tion or  imputation  is  not  prescribed  by  law,  the  limitation 
of  the  79th  Article  of  War,  that  "no  officer  shall,  when  it 
can  be  avoided,  be  tried  by  officers  inferior  to  him  in  rank/' 
not  applying  to  courts  of  inquiry. 

i  See  post,  par.  822-826.  2  Art.  1 16,  1 17. 


214  MILITARY  LAW 

462.  Constitution. — A  court  of  inquiry  may  be  con- 
vened at  any  time  by  the  President,  but  never  by  a  com- 
manding officer  except  upon  demand  of   the  officer  or 
soldier  whose  conduct  is  to  be  inquired  into. 

The  term  " commanding  officer"  is  not  restricted  by 
the  statute,  but  the  court  of  inquiry  should  not  in  general 
be  ordered  by  an  inferior — post  or  regimental — com- 
mander, where  the  charges  required  to  be  investigated  are 
not  such  as  an  inferior  court-martial  could  legally  take 
cognizance  of.1  The  word  "  demand  "  in  the  115th  Article 
of  War  has  been  construed  as  synonymous  with  "  re- 
quest "  or  " application  for."  It  is  optional  with  the  com- 
manding officer  to  refuse  the  application;  but  in  event 
of  such  refusal  the  applicant  may,  if  not  satisfied,  appeal 
to  higher  authority.2 

463.  The  form  of  the  order  convening  a  court  of  inquiry 
is  similar  to  that  of  a  court-martial,  the  members  and  the 
recorder  being  designated  by  name  and  rank,  and  the 
transaction,  accusation,  or  imputation  to  be  investigated 
is  specified  in  the  order;    and  if  the  court  is  to  give  an 
opinion  on  the  merits  of  the  case  the  order  must  so  direct, 
otherwise  no  such  opinion  will  be  given.3 

MODE   OF   PROCEDURE 

464.  Organization. — The  court  meets  at  the  time  and 
place  directed,  and  the  fact  that  the  members  and  the 
recorder  are  present  is  recorded,  as  is  also  the  presence 

(of  the  person  whose  transactions,  or  conduct,  are  to  be 
investigated  if  he  is  actually  present,  though  his  presence 
is  not  obligatory  or  essential.4  If  a  member  is  absent  or 
the  court  reduced  below  the  number  named  in  the  order, 
by  any  cause,  the  convening  authority  should  be  notified, 
so  that  he  may,  if  he  desire,  replace  such  member  or 

1  Dig.  Op.  J.  A.  G.  367.  3  Art.  119. 

2  Winthrop,  Vol.  1,  p.  737.  4  Winthrop,  Vol.  1,  p.  745. 


COURTS  OF  INQUIRY  215 

members;  for  a  new  member  may  be  detailed  to  take  his 
seat  during  the  inquiry. 

The  accuser,  if  any,  and  the  accused,  or  any  officer 
whose  conduct  will  be  materially  involved  in  the  inquiry, 
each  with  counsel  if  desired,  are  also  generally  allowed 
to  be  present.1 

465.  Reporter. — A  reporter  may  be  allowed  in  impor- 
tant cases,  his  employment  and  rate  of  compensation  being 
in  the  discretion  of  the  Secretary  of  War.     Such  reporters 
are  usually  paid  the  rates  fixed  by  Army  Regulations  for 
reporters  of  general  courts-martial.2 

466.  Challenges  of  Members. — By  the  custom  of  the 
service,  members  of  courts  of  inquiry  are  subject  to  chal- 
lenge in  the  same  manner  as  before  courts-martial,3  and 
when  the  court  is  composed  of  two,  or  of  three,  members 
and  the  number  is  reduced  by  casualty,  or  challenge,  the 
convening  authority  should  be  notified,  so  that  a  new 
member  may  be  detailed  during  the  inquiry.     But  the 
court  may  legally  proceed  with  the  reduced  number.4 

467.  Oath  of   Members    and    Recorder. — The   oath, 
Article  117,  is  administered  to  the  members  by  the  re- 
corder, and  to  the  recorder  by  the  president  of  the  court.5 

468.  Function  of  the  Court  of  Inquiry.— The  function 
of  a  court  of  inquiry  is  solely  that  prescribed  in  the  articles 
quoted  above.     Such  courts  are  limited  in  their  operation 
to  "  officers  or  soldiers  ";  they  cannot  be  ordered  to  in- 
vestigate transactions  of,  or  accusations  or  imputations 
against,  persons  not  in  the  military  service  or  those  who 
have  been  separated  therefrom,  even  though  such  trans- 
actions, accusations,  etc.,  relate  to  their  acts  or  conduct 
while  in  the  Army.6 

1  Winthfop,  Vol.  1,  p.  745. 

2  Court-martial  Manual,  p.  83. 

3  Davis'  Military  Law,  p.  221. 

4  Court-martial  Manual,  p.  83. 
•Art.  117.     See  par.  460,  supra. 
6  Dig.  Op.  J.  A.  G.  366. 


216  MILITARY  LAW 

469.  The  court,  as  well  as  the  recorder,  has  the  same 
power  to  summon  and  examine  witnesses  as  is  given  to 
courts-martial   and    the    judge-advocates    thereof.1     But 
not   being  a  court  in  the  legal  meaning   of   the   term, 
it  has  no  power  to  punish  for  contempt.     The  Act  of 
March  2,    1901    (G.  0.  27,  A.  G.  0.,  1901),   providing  for 
the  punishment  of  a  civilian  witness  for  refusing  to  ap- 
pear or  testify,  is  limited  by  its  terms  to  general  courts- 
martial.2    The  authority  to  issue  process  to  compel  civilian 
witnesses  to  appear  and  testify,  vested  in  every  judge- 
advocate  of  a  court-martial,  does  not  extend  to  recorders 
of  courts  of  inquiry.3 

470.  Examination  of  Witnesses.— The  examination  of 
witnesses  and  the  introduction  of  evidence  is  proceeded 
with  substantially  as  before  courts-martial,  each  witness 
taking  the  same  oath,  administered  by  the  recorder,  as  is 
taken  by  witnesses   before   courts-martial.4    The   party 
accused  has  the  right  to  examine  and  cross-examine  the 
witnesses  so  as  fully  to  investigate  the  circumstances  in 
question,  and  may  introduce  witnesses  of  his  own,  and 
object  to  witnesses  and  testimony  offered  by  the  recorder, 
and  may  interrogate  and  impeach  them.     He  may  also 
take  the  stand  himself  as  a  witness,  at  his  own  request, 
under  provisions  of  the  Act  of  March  16,  1878,  subject 
to  cross-examination. 

471.  The  inquiry  not  being  a  judicial  proceeding,  the 
court  is  not  called  upon  to  enforce  the  rules  of  evidence 
so  strictly  as  they  would  be,  in  general,  in  a  court-martial, 
but  it  will  ordinarily  be  safest  and  most  equitable  to 
observe  them.5 

The  court  of  inquiry,  equally  with  the  court-martial, 

1  Art.  118. 

2  Dig.  Op.  J.  A.  G.,  p.  107,  note;  Winthrop,  Vol.  1.  p.  749. 

3  Dig.  Op.  J.  A.  G.  2478. 

4  Art.  118.     See  par.  460,  supra. 
8  Winthrop,  Vol.  1,  p.  750. 


COURTS  OF  INQUIRY  217 

has  the  power  to  act  upon  and  determine  questions  as 
to  the  admissibility  of  evidence,  including  depositions, 
offered  before  it. 

472.  The  proceedings  of  courts  of  inquiry  may  be  either 
closed  or  open  according  to  the  discretion  of  the  court,  and 
where  the  case  is  one  that  makes  such  action  desirable, 
the  doors  would  properly  be  closed  upon  the  public;  but 
Article  118  provides  for  the  summoning  and  examina- 
tion of  the  witnesses  and  that  the  accused  may  examine 
or  cross-examine  them,  and  the  custom  of  the  service 
permits  the  presence  of  his  counsel,  and  of  the  accuser  and 
his  counsel,  and  of  the  necessary  clerks. 

In  its  final  deliberations,  however,  or  where  it  is  desired 
to  consider  some  interlocutory  question  without  publicity, 
the  court  is  cleared  and  doors  are  closed  as  in  the  case  of  a 
court-martial.1 

473.  Duties  of  Recorder. — The  duties  of  the  recorder 
are  similar  to  those  of  a  judge-advocate  of  a  general  court- 
martial.    He  prepares  the  case  so  as  to  avoid  delay  when 
the  court  meets;    summons  witnesses,  having  the  same 
power  therefor  as  the  judge-advocate  of  a  court-martial;2 
prepares  the  room  for  its  meeting,  procures  the  necessary 
stationery,  etc.     He  acts  for  the  government  in  the  inves- 
tigation, administers  the  oath  to  the  court  and  to  wit- 
nesses, asks  necessary  questions  of  witnesses,  etc.,  and  is 
required  to  "  accurately  and  impartially  record  the  pro- 
ceedings of  the  court  and  the  evidence  to  be  given."  3 
He  is  not  the  adviser  of  the  court,  nor  a  prosecutor  before 
it,  but  must  assist  the  court,  if  it  so  desires,  in  all  mat- 
ters leading  to  correct  conclusions  of  law  and  of  fact.4 

474.  The  Record. — The  record  is  made  up  in  a  form 
and  manner  similar  to  that  of  a  general  court-martial,  and 

1  Winthrop,  Vol.  1,  p.  748. 

2  Art.  118.     See  ante,  par.  460. 

»  3  Art.  116,  117.     See  ante,  par.  460. 

4  Court-martial  Manual,  p.  84. 


218  MILITARY  LAW 

must  be  authenticated  by  the  signatures  of  the  recorder 
and  president,  and  delivered  to  the  commanding  officer  1 
who  convened  the  court,  or  to  the*  President,  if  convened 
by  him. 

The  record  consists  of  two  parts :  (1st)  the  testimony  of 
the  witnesses,  including  the  documentary  evidence  sub- 
mitted and  the  arguments  or  statements  made  by  those 
subject  to  investigation,  and  (2d)  the  report  proper,  that 
is,  a  recital  or  statement  of  the  facts  constituting  the 
occurrence  referred  to  the  court  for  examination.  This 
report  is  based  upon  and  derived  from  the  testimony  sub- 
mitted and  the  evidence  adduced,  and  its  statements  must 
be  supported  thereby;  reference  to  the  testimony  of  wit- 
nesses may  be  used,  and  the  use  of  foot-notes  and  cross- 
references  is  also  authorized.2  When  it  is  so  ordered  the 
court  also  records  its  opinions  on  the  merits  of  the  case. 

475.  While  it  is  desirable  that  the  members  of  a  court  of 
inquiry,  directed  to  express  an  opinion,  should  concur  in 
their  conclusions,  they  are  not  required  to  do  so  by  law  or 
regulations ;  members  may  disagree  and  submit  a  separate 
report,  or  reports,  accordingly.3 

The  report  or  conclusion  of  a  court  of  inquiry  is  con- 
sidered to  be  of  the  nature  of  a  confidential  communica- 
tion to  the  convening  authority,  and,  like  the  findings 
and  sentence  of  a  court-martial,  should  not  be  disclosed 
by  the  members  of  the  court,  or  the  recorder,  until  pub- 
lished by  the  proper  authority. 

476.  Action  on  the  Proceedings. — The  record  of  the 
court  when    received  by  the  convening  officer  may  be 
acted  upon,  in  his  discretion,  by  approval  or  disapproval. 
He  may  decide   that  no  further  action  is  necessary  or, 
if  sufficient  grounds  exist  for  it,  he  may  order  a  court- 
martial  in  the  case. 

1  Article  120.     See  ante,  par.  460;   post,  par.  827. 

2  Davis'  Military  Law,  p.  222. 

3  Dig.  Op.  J.  A.  G.  370. 


COURTS  OF  INQUIRY  219 

If  the  proceedings  are  not  satisfactory  to  him  he  may  re- 
turn them  for  revision  or  further  investigation,  and  the 
court  may  be  required,  upon  revision,  to  rehear  witnesses 
or  to  take  entirely  new  testimony,  or  it  may  do  so  of  its 
own  motion.1 

477.  The  proceedings  having  received  his  final  action,  the 
convening  authority  may  publish,  in  orders,  the  whole  or 
part,  or  the  substance,  of  the  report  of  the  court,  or  the 
result  alone,  as,  for  example,  that  it  is  determined  that 
no  further  proceedings  are  called  for  in  the  case;    or  he 
may  omit  altogether  to  publish  it.2 

478.  Use  of  the  Proceedings  as  Evidence. — It  is  pro- 
vided by  the  121st  Article  of  War  that  "The  proceedings 
of  a  court  of  inquiry  may  be  admitted  as  evidence  by  a 
court-martial,  in  cases  not  capital  nor  extending  to  the 
dismissal  of  an  officer:   Provided,  That  the  circumstances 
are  such  that  oral  testimony  cannot  be  obtained." 

The  proceedings  of  the  court  of  inquiry  will  properly  be 
proved  before  the  court-martial  either  by  the  original 
record  of  the  court,  or  by  a  copy  thereof  certified  by  the 
Judge- Advocate-General,  or  other  official  in  whose  custody 
the  original  may  be.3 

Persons  desiring  a  copy  of  the  proceedings  of  a  court 
of  inquiry  may  apply  to  the  Secretary  of  War  therefor.4 

1  Winthrop,  Vol.  1,  pp.  752,  753. 

3  Id.,  p.  754. 

4  Dig.  Op.  J.  A.  G.  361,  364. 


CHAPTER  XXVII 
RETIREMENT- RETIRING  BOARDS 

479.  Congress  has  made  provision  by  law  for  the  retire- 
ment of  officers  who  have  attained  a  fixed  age,  or  who 
have  had  a  certain  number  of  years  of  service,  or  who  have 
become  incapable,  in  any  way,  of  performing  the  duties 
of  their  office.     Officers  retired  from  active  service  are 
withdrawn  from  command  and  from  the  line  of  promotion.1 

480.  Such  officers,  however,  unless  "  wholly  "  retired,  still 
form  a  part  of  the  military  establishment,  are  entitled  to 
wear  the  uniform  of  the  rank  on  which  they  may  be  re- 
tired, are  borne  upon  the  Army  Register,  and  though  not 
in  active  service  are  subject  to  discipline  as  other  officers 
and  may  be  tried  and  sentenced  by  court-martial  for 
any  breach  of  the  rules  and  articles  of  war.2    As  they 
still  constitute  a  part  of  the  Army,  they  are  properly 
exempt  from  the  public  obligations  peculiar  to  civilians, 
such  as  jury  service,  etc.,  though  if  summoned  for  duty 
as  juror  in  any  court,  they  should  appear  and  urge  the 
objection,  arising  from  their  military  status,  to  the  judge' 
for  the  determination  of  the  court.3 

481.  Whether  a  retired  officer  holds  a  public  office  or  not 
within  the  meaning  of  the  statutes  is  still  apparently 
open  to  question,4  though  it  has  been  held  that  they  do 

1  Sec.  1255,  R.  S. 

3  Sec.  1256,  R.  S.;   U.  S.  v.  Tyler,  105  U.  S.  244;   Closson  v.  U.  S., 
7  App.  Cases,  D.  C.  460. 

8  Dig.  Op.  J.  A.  G.  2201. 

4  See  Dig.  Op.  J.  A.  G.  2210,  and  Id.,  p.  623,  note. 

220 


RETIREMENT— RETIRING  BOARDS  221 

not,  except  when  assigned  to  duty  under  some  statute, 
exercise  public  office.  "  They  are  in  fact  pensioners."  1 
And  "a  retired  officer  is  not  prohibited  by  law  from  hold- 
ing office  in  an  executive  department,  or  as  a  department 
clerk,  nor  from  receiving  the  salary  thereof  in  addition 
to  his  retired  pay."  2  Section  1222,  Revised  Statutes, 
prohibiting  the  accepting  or  holding  of  civil  office,  is  held 
not  to  apply  to  retired  officers.  They  may  hold  any 
State,  county,  or  municipal  office  and  receive  the  pay  and 
emoluments  of  the  same  without  military  office  or  pay 
being  in  any  manner  affected.3 

The  provision  of  Sec.  1763,  Rev.  Stat.  U.  S.,  prohib- 
iting any  person  who  holds  an  office,  the  salary  or  annual 
compensation  attached  to  which  amounts  to  the  sum  of 
two  thousand  five  hundred  dollars,  from  receiving  com- 
pensation for  discharging  the  duties  of  any  other  office, 
has  since  been  modified  by  an  act  containing  the  same 
provision,  but  with  following  addition:  "but  this  shall 
not  apply  to  retired  officers  of  the  Army  or  Navy  when- 
ever they  may  be  elected  to  public  office,  or  whenever  the 
President  shall  appoint  them  to  office  by  and  with  the 
advice  and  consent  of  the  Senate."  4 

Retired  officers  may  now,  with  their  consent,  be  assigned 
by  the  Secretary  of  War  to  active  duty  in  recruiting;  for 

1  Davis'  Military  Law,  p.  238;  Ives,  p.  292:  Dig.  Op.  J.  A.  G.  2209: 
Geddes  v.  U.  S.,  38  Ct.  Cl.  429. 

2  Dig.  Op.  J.  A.  G.  2202;  Id.,  p.  620,  note  4.     See  also  Id.,  p.  505, 
note  1;  Collins  v.  U.  S.,  15  Ct.  Cl.  22;   Badeau  v.  U.  S.,  130  U.  S.  439, 
452;  Yates  v.  U.  S.,  25  Ct.  Cl.  296.      . 

3  Dig.  Op.  J.  A.  G.  1823.     See  22  Op.  Attorney-General  88. 
Retired  officers  may  be  assigned  to  duty  at  the  Soldiers'  Home 

(Sec.  1259,  R.  S.);  be  appointed  to  civil  office,  not  being  prohibited 
therefrom  by  the  wording  of  Sec.  1259,  R.  S.  (In  re  Smith,  19  Op. 
Att'y-Gen.  283;  Fed.  Stat.  Annotated,  Vol.  7,  p.  1034;  sea  U.  S.  v. 
Brindle,  110  U.  S.  688;  U.  S.  v.  Saunders,  120  U.  S.  126);  may  be 
employed  on  active  duty,  other  than  the  command  of  troops,  in  time 
of  war  (Act  March  2, 1899) ;  be  detailed  at  any  time  as  Adjutant-General 
of  the  militia  of  the  District  of  Columbia  (Act  June  6,  1900);  or  be 
employed  as  president,  superintendent,  professor,  or  instructor  at  any 
college  or  other  institution  of  learning  (Sec.  1225  and  1260,  R.  S.). 

4  Act  July  31,  1894;  Supplement  to  Rev.  Stat.,  Vol.  2,  p.  212. 


222  MILITARY  LAW 

service  in  connection  with  the  organized  militia  in  the 
several  States  and  Territories,  upon  the  request  of  the 
governor  thereof;  as  military  attaches;  upon  courts- 
martial,  courts  of  inquiry,  and  boards;  and  to  staff  duties 
not  involving  service  with  troops.1 

The  office  of  an  officer  of  the  Army  and  his  rank  are 
not  necessarily  identical.  .When  an  officer  is  retired  the 
office  remains  the  same  though  different  rank  may  be 
conferred  upon  him  as  a  title  of  distinction;  and  in  con- 
nection with  this  change  of  rank  his  pay  may  be  changed. 
The  rank  and  pay  of  a  retired  officer  are  within  the  con- 
trol of  Congress.2 


RETIREMENT  BY   LAW 

482.  The  law  provides  that  "when  an  officer  has  served 
forty  years  either  as  an  officer  or  a  soldier  in  the  regular  or 
volunteer  service,  or  both,  he  shall,  if  he  make  applica- 
tion therefor  to   the  President,   be  retired  from  active 
service  and  placed  on  the  retired  list;  and  when  an  officer 
is  sixty-four  years  of  age,  he  shall  be  retired  from  the 
active  list  and  placed  on  the  retired  list."3     "When  an 
officer  has  been  thirty  years  in  the  service  he  may,  upon 
his  own  application,  in  the  discretion  of  the  President,  be 
retired  from  active  service  and  placed  upon  the  retired 
list."  4 

483.  When  any  officer  has  served  forty-five  years  as  a 
commissioned  officer,  or  is  sixty-two  years  old,  he  may 
be  retired  from  active  service  at  the  discretion  of  the 
President.5 

This  law  has  since  been  modified  by  a  provision  that 

1  Act  April  23,  1904;  G.  O.  76,  War  Department,  1904. 

2  Wood  v.  U.  S.,  107  U.  S.  416,  417. 
8  Act  June  30,  1882. 

4  Sec.  1243,  R.  S. 
8  Sec.  1244,  R.  S. 


RETIREMENT— RETIRING  BOARDS  223 

service  as  an  enlisted  man  shall  be  credited  in  computing 
service  for  longevity  pay  and  retirement.1 

484.  It  is  held  that  in  computing  service  under  Section 
1243,  Revised  Statutes,  the  period  served  by  the  officer 
as  a  cadet  at  the  Military  Academy  is  legally  counted.2 

485.  In  neither  of  the  cases  under  the  laws  above  stated 
is  there  any  requirement  for  the  action  of  a  retiring  board ; 
the  matter  lies  wholly  within  the  hands  of  the  officer  and 
the  President,  and  the  limits  prescribed  by  the  law,  re- 
tirement at  the  age  of  sixty-four  being  compulsory. 

RETIRING   BOARDS3 

486.  When  any  officer  has  become  incapable  of  perform- 
ing the  duties  of  his  office,  he  must  be  either  retired  from 
active  service,  or  wholly  retired  from  the  service,4  and 
this  is  accomplished  through  the  finding  of  a  retiring 
board  acting  upon  the  case. 

487.  Composition  and  Constitution  of  Retiring  Board. 
—This  board  is  authorized  by  the  following  law :  The  Sec- 
retary of  War,  under  the  direction  of  the  President,  shall, 
from  time  to   time,   assemble  an  Army  retiring  board, 
consisting  of  not  more  than  nine  nor  less  than  five  officers, 
two-fifths  of  whom  shall  be  selected  from  the  Medical 
Corps.    The  board,  excepting  the  officers  selected  from 
the  Medical  Corps,  shall  be  composed,  as  far  as  may  be,  of 
seniors  in  rank  to  the  officer  whose  disability  is  inquired 
of.5 

488.  In  order  to  constitute  a  legal  board  there  must  be, 
therefore,  not  more  than  nine  officers,  nor  less  than  five, 
and  two-fifths  of  the  board  must  be  officers  of  the  Medical 
Corps. 

1  Act  June  18,  1878,  Sec.  7. 

2  Dig.  Op.  J.  A.  G.  2205. 

»  3  For  form  of  order  and  record,  see  Appendix  E,  9. 
<  Sec.  1245,  R.  S. 
6  Sec.  1246,  R.  S. 


224  MILITARY  LAW 

489.  The  members  of  the  board  are  designated  in  the 
order  of  the  Secretary  of  War,  their  names,  rank,  etc.,  and 
that  of  the  recorder,  being  stated  in  the  order.     There  is 
no  statutory  authority  for  the  appointment  of  a  recorder, 
but,  under  the  custom  of  the  service,  the  Secretary  of  War 
appoints  a  recorder  for  each  retiring  board.     He  is  not  a 
member  of  the  board,  and  simply  takes  down  the  testi- 
mony and  records  the  proceedings.     He  will,  however, 
carry  out  such  instructions  as  may  be  given  him  by  the 
board,  and  may  be  required  by  the  latter  to  collect  evidence, 
present  it  to  the  board,  examine  the  witnesses,  and,  gen- 
erally speaking,  conduct  the  case  for  the  Government.1 

490.  The  provision  of  the  statute  as  to  the  rank  of  the 
members  is  directory  only,  and  the  decision  of  the  con- 
vening authority,  as  evidenced  by  the  selection  of  the 
members  of  the  board,  is  conclusive.2 

PURPOSE   AND   POWERS 

491.  The  board  is  empowered  to  inquire  into  and  de- 
termine the  facts  touching  the  nature  and  occasion  of  the 
disability  of  any  officer  who  appears  to  be  incapable  of  per- 
forming the  duties  of  his  office  and  shall  have  such  powers 
of  a  court-martial  and  of  a  court  of  inquiry  as  may  be 
necessary  for  that  purpose.3    But  this  does  not  authorize 
such  a  board  to  entertain  a  charge  of  a  military  offense  as 
such,  nor  to  try  an  officer.4 

492.  In  pursuance  of  Sec.  1246,  Revised  Statutes,  it  is 
required  that  "when  an  officer  becomes  disabled  for  the 
performance  of  duty  by  reason  of  wounds,  sickness,  or 
improper  habits,  his  immediate  commander  will  report 
the  facts  to  the  department  commander  for  the  action  of 
the  War  Department.     The  report  in  each  case  will  con- 

1  Court-martial  Manual,  p.  85. 

2  Id. 

3  Sec.  1248,  Revised  Statutes. 

4  Dig.  Op.  J.  A.  G.  2192. 


RETIREMENT— RETIRING  BOARDS  225 

tain  specific  statements  and  the  names  of  witnesses  by 
whom  they  can  be  substantiated."  1 

"Habitual  intemperance,  gambling,  or  other  vices  that 
tend  to  corrupt  an  officer  and  lower  the  professional  stand- 
ard will  be  regarded  as  proper  subjects  for  the  considera- 
tion and  report  of  a  retiring  board."  2 

493.  These  regulations  prescribe  the  method  by  which 
the  incapacity  of  an  officer  is  brought  to  the  attention  of 
the  Secretary  of  War,  and  those  things  which  the  board 
must  take  into  consideration  in  determining  the  cause  of 
the  disability. 

494.  "The  provision  of  Sec.   1248,   Revised  Statutes, 
that  the  board  '  shall  have  such  powers  of  a  court-martial 
and  of  a  court  of  inquiry  as  may  be  necessary/  etc.,  is 
indefinite";  but  construed  in  connection  with  the  other 
provisions  cited,  "  its  evident  intention  is  that  the  board 
shall  have  and  exercise  such  powers  of  a  '  court '  as  may 
be  requisite  to  insure  a  full  investigation,  to  afford  a  fair 
hearing,  and  to  enable  it  satisfactorily  to  determine  the 
questions   referred.      Thus  it  is  properly  authorized  and 
empowered  to  call  for  and  entertain   such  testimony  of 
witnesses,  depositions,  documents,  or  papers,  as  may  be 
material  to  establish  or  illustrate  the  nature  or  extent  of 
the  disability,  to  pass  upon  questions  of  admissibility  of 
evidence,  to  grant  continuances,  to  give  the  officer  ordered 
before  it  a  reasonable  opportunity  of  defense  if  desired,  to 
find  and  report  in  his  absence  if  he  fails  to  appear;   and, 
further,  to  determine  the  relevancy  and  validity  of  chal- 
lenges to  its  members"  according  to  the  88th  Article  of 
War,   and    to   punish   acts   in    the   nature   of   contempt 
according  to  the  86th  Article  of  War,  "if  necessary  to  an 
impartial  and  complete  inquiry."  3 

495.  "In  the  execution  of  the  duty  thus  imposed  by 
law,  the   board  is  required  to  ascertain  the  nature  and 

1  A.  R.  76.         2  A.  R.  77.         3  Court-martial  Manual,  p.  88 . 


226  MILITARY  LAW 

extent  of  the  disability  and  its  character  and  effect,  as 
temporary  or  permanent.  The  evidence  upon  which  to 
base  its  findings  in  this  regard  should  be  derived  chiefly 
but  not  exclusively  from  the  report  of  the  medical  officers, 
and  from  the  authenticated  extracts  from  the  depart- 
mental records  which  show  the  cases  in  which  the  officer 
has  received  medical  or  surgical  treatment  during  his  con- 
nection with  the  military  service." 

496.  "  The  board  having  established  the  fact  of  incapacity 
for  active  service  must  seek  the  cause  of  such  incapacity 
and   determine  whether   the  cause  so  ascertained  is  an 
incident  of  service;    that  is,  a  thing  which  inseparably  be- 
longs to,  is  connected  with,  or  inheres  in  the  military 
service.     Battles,  marches,  the  performance  of  the  several 
duties  in  garrison  or  in  the  field  which  are  imposed  upon 
officers  of  the  line  or  staff  by  law,  regulations,  the  lawful 
orders  of  competent  military  superiors,  by  an  established 
custom,  or  by  the  exigencies  or  necessities  of  the  military 
service — all  of  these  make  up  and  constitute  the  'incidents 
of  service/  one  or  more  of  which  must  be  ascertained  by 
the  board  as  the  determining  cause  of  an  incapacitating 
disability.     If  the  disabling  cause  be  a  wound  or  injury, 
the  wound  or  injury  must  have  resulted  from  an  incident 
of  the  service;   if  it  be  a  disease,  the  disease  must  have 
been  the  result  of  an  incident  or  a  succession  or  aggre- 
gation of  incidents  of  the  service ,  in  other  words,  the  board 
must  pass  from  the  disability  to  the  occasion  or  circum- 
stance of  which  it  is  the  direct  result,  and  that  occasion 
or  circumstance  must  be  a  thing  so  inseparably  associated 
with  the  military  service,  so  directly  connected  with  it 
and  growing  out  of  it,  as  to  entitle  it  to  be  regarded  as  an 
incident  of  the  service."  1 

497.  "If  an  officer  participates  in  military  operations, 
or  serves  in  a  locality  where  the  climatic  or  other  causes 

1  Court-martial  Manual,  pp.  88,  89. 


RETIREMENT— RETIRING  BOARDS  227 

are  such  as  to  induce  a  particular  form  of  disease,  and, 
having  taken  due  and  reasonable  precautions  to  prevent  it, 
contracts  such  disease,  then  if  disability  results  its  cause 
would  properly  be  regarded  as  an  incident  of  service 
within  the  meaning  of  the  statute.  But  when  a  disease 
is  contracted,  not  due  to  exposure  or  to  the  existence  of 
conditions  such  as  have  been  described,  the  board  will 
require  the  production  of  testimony  showing  that  it  is  not 
due  to  vicious  or  irregular  habits,  and  that  there  has  been 
neither  carelessness  nor  contributory  negligence  on  the 
part  of  the  officer,  who  is  bound  as  a  prudent  man  and  a 
conscientious  public  officer  to  use  every  proper  means  at 
his  command  to  preserve  his  health  and  to  maintain  his 
physical  efficiency  under  all  conditions  of  service."  1 

498.  The  disability  which  the  board  is  to  inquire  into  is 
an  existing  physical  or  mental  incapacity,  not  a  moral  de- 
fect or  a  criminal  amenability.     If  the  case  be  one  calling 
for  trial  and  punishment,  it  should  be  referred  to  a  court- 
martial.2 

499.  Recorder. — Although  there  is  no  statutory  pro- 
vision for  a  recorder,  custom  of  service  authorizes  his 
appointment  and  his  duties  are  similar  to   those  of   a 
judge-advocate    of   a   court-martial    or    the   recorder  of 
a  court  of  inquiry.      He  prepares  the  place  of  meeting, 
stationery,  etc.,  summons  and  examines  the  witnesses,  col- 
lects the  evidence,  conducts  the  case  for  the  government, 
records   the  proceedings,  and   authenticates   the  record. 
He  may  be  assisted  by  a  stenographic  reporter  employed 
on  the  authority  of  the  Secretary  of  War,  previously  ob- 
tained, which  authority  must  be  filed  with  the  voucher  on 
which  payment  is  made.     The  form  of  voucher  used  will 
be  that  provided  for  payment  of  reporters  for  general 

1  Court-martial  Manual,  pp.  87,  88,  89;    Circular  War  Department 
February  27,  1904. 

2  Court-martial  Manual,  p.  88. 


228  MILITARY  LAW 

courts-martial,  with  necessary  changes  in  the  wording  of 
the  form.1 

500.  Procedure. — The  procedure  of  the  board  is  closely 
assimilated  to  that  of  a  court  of  inquiry,  and  the  rules  which 
govern  such  court  are  applicable.     It  is  the  duty  of  the 
board  itself,  however,  to  examine  the  witnesses  if  neces- 
sary and  to  develop  the  facts  pertinent  to  the  investiga- 
tion required  of  it,  'not   depending  entirely  upon  their 
examination  by  the  recorder.     The  board  is  merely  an 
advisory  board  and  is  not  bound  by  the  statutes  or  regu- 
lations governing  courts-martial.2 

501.  Right  of  Officer  to  be  Heard. —  The  board  having 
organized,  and  the  members  and  the  recorder  being  present, 
it  is  the  right  of  the  officer  whose  case  is  to  be  considered  to 
be  present  and  to  be  heard  before  the  board,  if  he  desires 
it.    This  right  is  guaranteed  by  the  provision  that  "  Except 
in  cases  where  an  officer  may  be  retired  by  the  President 
upon  his  own  application,  or  by  reason  of  his  having  served 
forty-five  years,  or  of  his  being  sixty-two  years  old,  no 
officer  shall  be  retired  from  active  service,  nor  shall  an 
officer,  in  any  case,  be  wholly  retired  from  the  service, 
without  a  full  and  fair  hearing  before  an  Army  retiring 
board,  if,  upon  due  summons,  he  demands  it. "  3 

If,  having  had  due  summons,  he  fails  to  appear  before 
the  board  and  to  demand  a  hearing,  he  waives  the  right, 
is  himself  in  default,  and  the  board  may  proceed  without 
him,  and  he  cannot  take  exception  to  a  conclusion  arrived 
at  in  his  absence.4 

502.  The   above  provision  of   law  (par.  501)    entitles 
the  officer  subject  to  be  thus  retired  "to   appear  before 
the   board,  with   counsel  if    desired,  and    to    introduce 
testimony  of  his  own,  and  to  cross-examine  the  witnesses 

1  Court-martial  Manual,  p.  85.     See  Form,  Appendix  E,  21. 

2  Carrick  v.  U.  S.,  24  Ct.  Cl.  265. 
8  Sec.  1253,  Revised  Statutes. 

4  Dig.  Op.  J.  A.  G.  2197. 


RETIREMENT— RETIRING  BOARDS  229 

examined  by  the  board,  including  the  medical  officers  of 
the  board  who  may  have  taken  part  in  the  medical  ex- 
amination, and  have  stated  or  reported  to  the  board  the 
result  of  the  same."  l 

503.  Challenge. — The   officer,   with   his   counsel,  may 
appear  before  the  board,  and  as  the  law  prescribes  that  he 
shall  have  "a  full  and  fair  hearing"  he  may  exercise  the 
right  of  challenge.     This  is  done  in  a  manner  similar  to 
that  before  courts-martial,  the  cause  being  stated,  and 
the  member  replying  and,  if  necessary,  being  examined 
on  his  voir  dire,  and  if  the  board  is  satisfied  that  the  chal- 
lenged member  entertains  malice  or  prejudice  that  will 
prevent  his  giving  the  case  a  fair  hearing,  such  member  is 
excused  from  sitting.     The  board  cannot  proceed,  how- 
ever, with  less  than  five  members,  two  of  whom  must  be 
of  the  Medical  Corps.     Should  they  be  reduced  below  this 
number,  or  proportion,  the  board  should  adjourn,  reporting 
the  facts  to  the  convening  authority. 

504.  Oath. — The  board  having  the  proper  number  to 
proceed  after  the  challenges  have  been  acted  upon,  the 
members  thereof  are  then  duly  sworn  in  accordance  with 
the  provision  of  law  that  "the  members  of  said  (retiring) 
board  shall  be  sworn  in  every  case  to  discharge  their 
duties  honestly  and  impartially."  2 

The  oath  is  administered  by  the  recorder,  and  the  follow- 
ing form  complies  with  the  statute:  "You  (naming  the 
members)  do  swear  that  you  will  honestly  and  impartially 
discharge  your  duties  as  members  of  this  board  in  the 
matter  now  before  you.  So  help  you  God."  The  pre- 
siding officer  of  the  board  then  administers  the  following 
oath  to  the  recorder:  "You  (naming  him)  do  swear  that 
you  will,  According  to  your  best  ability,  accurately  and 
impartially  record  the  proceedings  of  the  board  and  the 
evidence  to  be  given  in  the  case  in  hearing.  So  help  you 

1  Court-martial  Manual,  p.  86.  2  Sec.  1247,  Revised  Statutes. 


230  MILITARY  LAW 

God."  1    The  oath  administered  to  a  witness  is  the  same 
as  that  to  a  witness  before  a  court-martial.2 

505.  When  an  officer  comes  before  a  retiring  board  it  is 
the  duty  of  the  medical  officers  of  the  board  to  make  a 
thorough  medical  examination  of  him,  and  to  reduce  the 
result  to  writing,  which  is  submitted  to  the  board. 

506.  When  the  officer  desires  retirement,  it  is  proper  for 
him  at  the  beginning  of  the  hearing  to  state  under  oath  the 
nature  and  cause  of  his  disability,  the  recorder  and  mem- 
bers of  the  board  asking  such  questions  as  will  help  bring 
out  the  facts.     He  may  also  be  interrogated  as  to  his  mili- 
tary history. 

But  if  the  retirement  is  opposed  by  him  he  cannot  be 
required  to  testify  against  himself.3 

507.  After  the  testimony  of  the  officer  has  been  taken, 
the  senior  medical  officer  is  sworn  as  a  witness,  and  sub- 
mits the  statement  of  the  result  of  the  medical  examina- 
tion of  the  officer,  and  is  interrogated  as  to  the  cause  and 
permanency  of  the  disability  and  the  degree  of  incapacity 
for  active  service.     The  other  medical  officer  or  officers 
(if  more  than  two)  are  similarly  examined. 

The  recorder  then  submits  documentary  evidence  which 
he  has  received  from  The  Military  Secretary,4  and  which 
is  duly  authenticated  by  the  official  seal  of  his  office  or  by 
his  signature. 

Other  evidence  may  then  be  introduced ;  and  the  officer 
before  the  board  has  the  right  to  object  to  improper  evi- 
dence, to  interrogate  the  witnesses,  and  may  himself  intro- 
duce evidence,  if  legal,  material,  and  relevant,  and  may 
submit  a  written  statement.5 

508.  Statute  of  Limitation. — The  investigation   of  a 
retiring  board  is  not  affected  by  any  limitation  of  time 

1  Court-martial  Manual,  p.  87. 

2  Art.  92. 

3  Court-martial  Manual,  p.  90. 

4  A.  R.  26. 

6  Court-martial  Manual,  p.  90. 


RETIREMENT— RETIRING  BOARDS  231 

as  is  that  of  a  court-martial  by  the  103d  Article  of  War, 
and  it  may  therefore  inquire  into  the  matter  of  a  dis- 
ability no  matter  how  long  since  it  may  have  originated.1 

FINDING 

509.  When  the  investigation  is  completed,  the  board  is 
closed  for  deliberation,  and  determines  whether  the  officer 
before  it  for  examination  is  incapacitated  for  active  ser- 
vice or  not.     The  recorder  need  not  retire  during  this 
deliberation.2 

When  the  board  finds  an  officer  incapacitated  for  active 
service,  it  must  find  and  report  the  cause  which,  in  its 
judgment,  has  produced  his  incapacity,  and  whether  such' 
cause  is  an  incident  of  the  service.3  If  it  finds  that  his 
incapacity  is  the  result  of  an  incident  of  the  service,  and 
such  decision  is  approved  by  the  President,  said  officer 
shall  be  retired  from  active  service  and  placed  upon  the 
list  of  retired  officers.4 

510.  When  the  board  finds  that  an  officer  is  incapacitated 
for  active  service,  and  that  his  incapacity  is  not  the  result 
of  any  incident  of  service,  and  its  decision  is  approved  by 
the  President,  the  officer  shall  be  retired  from  active  ser- 
vice, or  wholly  retired  from  the  service,  as  the  President 
may  determine.     Officers  wholly  retired  from  the  service 
are  given  one  year's  pay  and  allowances  of  the  highest 
rank  held  by  them  at  the  time  of  their  retirement;  5  and 
their  names  are  omitted  from  the  Army  Register.6 

When  ample  testimony  establishes  the  fact  that  an 
officer  has  through  vicious  indulgence  slighted  or  neglected 
his  duties  to  such  a  degree  as  to  make  it  unsafe  to  entrust 
him  with  a  command,  or  with  responsibility  that  properly 

1  Dig.  Op.  J.  A.  G.  2193;  Ben<§t,  p.  240. 

2  Court-martial  Manual,  p.  91. 

3  Sec.  1249,  Revised  Statutes. 

4  Sec.  1251,  Revised  Statutes. 

5  Sec.  1275,  R.  S. 

6  Sec.  1252,  R.  S. 


232  MILITARY  LAW 

belongs  to  his  grade,  and  when  it  is 'shown  that  such  habits 
have  continued  for  such  length  of  time  as  to  render  per- 
manent reformation  improbable,  this  fact,  rather  than  his 
condition  when  he  appears  before  the  board,  shall  weigh 
in  its  finding  as  to  his  incapacity  for  active  duty.1 

The  finding  should  be  framed  in  narrative  form,  and 
should  not  embrace  any  recommendation. 

The  board  may  modify  its  findings  or  decision  at  any 
time  before  forwarding  its  proceedings. 

RECORD 

511.  The  record  is  made  up  separately  for  each  case, 
and  when  completed  is  authenticated  by  the  signatures  of 
the  president  and  the  recorder,  and  is  transmitted  by  the 
latter  to  the  Secretary  of  War,  to  be  by  him  laid  before 
the  President  for  his  approval  or  disapproval  and  orders 
in  the  case.2     If  any  member  dissents  from  the  opinion  of 
the  board,  it  will  be  so  stated. 

THE   REVIEWING   AUTHORITY 

512.  The  finding  of  the  retiring  board  is  in  the  nature 
of  a  recommendation  and,  until  it  is  approved  by  the  Presi- 
dent, no  retirement  can  be  ordered  thereon.3     When  ap- 
proved by  the  President  the  finding  is  conclusive  as  to  the 
facts.4 

513.  The  board  finds  the  facts  and  the  President  ap- 
proves or  disapproves  the  finding,  but  the  law  does  not 
empower  him  to  modify  the  finding  or  to  substitute  a 
different  one.     There  is  here  a  judicial  power,  vested  in 
the  two,  and  not  in  the  President  acting  singly,  and  when 
the  power  has  been  once  fully  exercised  it  is  exhausted  as 
to  that  case.5    The  case  cannot  be  re-opened,  and  if  in- 
justice has  been  done  relief  can  be  afforded  by  Congress 

1  A.  R.  78.  3  Dig.  Op.  J.  A.  G.  2194. 

2  Sec.  1250,  R.  S.  4  Id.  2206. 

5  Dig.  Op.  J.  A.  G.  2206;  see  U.  S.  v.  Burchard,  125  U.  S.  179. 


RETIREMENT— RETIRING  BOARDS  233 

alone.1  If  the  board  should  find  the  officer  not  incapaci- 
tated for  active  service,  the  President  could  not  disapprove 
the  proceedings  and  then  retire  him.2 

514.  Revision. — The  President,  however,  in  any  case 
in  which,  in  his  judgment,  the  investigation  has  not  been 
completed,  or  the  finding  is  not- justified  by  the  facts,  may 
return  the  proceedings  for  a  further  inquiry  or  hearing, 
or  a  correction  of  its  conclusions,  as  in  case  of  a  court- 
martial.3    Not  being  a  court,  the  board,  upon  a  recon- 
sideration may  and  should,   if  so  directed,   re-examine 
former  witnesses  or  take  new  testimony.4 

RETIREMENT   ON   EXAMINATION   FOR    PROMOTION 

515.  The  law  of  October  1,  1890,  providing  for  the  ex- 
amination of  all  officers  below  the  grade  of  major,  before 
promotion  in  the  Army,  also  provides  that  "  Should  the 
officer  fail  in  his  physical  examination  and  be  found  in- 
capacitated for  service  by  reason  of  physical  disability  con- 
tracted in  line  of  duty  he  shall  be  retired  with  the  rank  to 
which  his  seniority  entitled  him  to  be   promoted;    but  if 
he  should  fail  for  any  other  reason  he  shall  be  suspended 
from  promotion  for  one  year,  when  he  shall  be  re-examined, 
and  in  case  of  failure  on  such  re-examination  he  shall  be 
honorably  discharged  with  one  year's  pay  from  the  Army." 

The  regulations  prescribed  by  the  President  in  accord- 
ance with  this  act  were  published  in  General  Orders  81, 
War  Department,  1904;  those  now  in  force  are  promul- 
gated in  General  Orders  128,  War  Department,  1906. 

516.  Composition  and  Constitution  of  the  Examining 
Board. — The  board,  in  each  case,  is   to   consist  of  five 
members,  three  of  whom  shall  be  officers  of  the  same  corps, 
department,  or  arm  of  the  service  as  the  officer  to  be  ex- 

1  See  Court-martial  Manual,  p.  92. 

2  Ives,  p.  292. 

3  Davis'  Military  Law,  p.  237. 

4  Winthrop,  Vol.  1,  p.  706. 


234  MILITARY  LAW 

amined,  and  senior  to  him  in  rank;  the  junior  of  these 
officers  other  than  medical  officers  shall  act  as  recorder; 
the  other  two  members  shall  be  medical  officers  selected 
without  limitation  as  to  rank;  they  shall  take  part  only 
in  the  physical  examination  of  the  officer.  In  the  exami- 
nation of  officers  of  the  Medical  Department,  the  board 
will  consist  of  three  medical  officers,  all  senior  in  rank  to 
the  officer  to  be  examined,  the  junior  of  whom  shall  act 
as  recorder.  If  an  officer  of  the  Medical  Department  is 
found  physically  disqualified  for  promotion,  the  fact  is 
reported  to  The  Military  Secretary  of  the  Army,  for  the 
appointment  of  two  line  officers,  senior  in  rank  to  the 
officer  to  be  examined,  as  additional  members. 

The  composition  of  a  board  for  examination  of  a  chap- 
lain will  be  similar  to  that  for  other  officers,  except  that, 
when  practicable,  one  line  officer  is  replaced  by  a  chaplain 
of  the  same  religious  faith  as  the  chaplain  to  be  examined. 

517.  Organ'zation  and  Procedure. — These  boards  are 
to  meet  at  places  named  in  the  regulations  therefor,  and 
the  members  thereof  are  to  be  continued  on  such  duty 
for  not  less   than  two  years,  except  in  cases  of  necessity. 
Their  organization  and  procedure  are  assimilated  to  that 
of  retiring  boards,  the  recorder  swearing  the  several  mem- 
bers, including  the  medical  officers,  faithfully  and  im- 
partially to  examine  and  report  upon  the  officer  about  to 
be  examined,  and  the  president  of  the  board  then  swearing 
the  recorder  to  the  faithful  performance  of  his  duty  as 
member  and  recorder.     The  proceedings  are  to  be  made  up 
separately  in  each  case. 

518.  Challenges. — Previous  to  the  swearing  of  the  mem- 
bers, they  may  be  challenged  for  cause  stated,  the  relevancy 
and  validity  of  which  shall  be  determined  by  the  full  board, 
according  to  the  procedure  of  courts-martial. 

The  record  must  show  that  the  right  to  challenge  was 
accorded. 


RETIREMENT  ON  EXAMINATION  FOR  PROMOTION.  235 

If  the  number  of  members  is  reduced  by  challenge  or 
otherwise,  the  board  must  adjourn  and  the  president  of 
the  board  report  the  facts  to  The  Military  Secretary  for 
the  action  of  the  War  Department. 

519.  The  officer  to  be  examined  is  first  thoroughly  ex- 
amined by  the  medical  officers,  who  then  report  to  the 
board.     When   the  board  finds  an  officer  physically  in- 
capacitated for  service,  it  concludes  the  examination  by 
finding   and   reporting   in    full  the   cause  which,    in  its 
judgment,  has  produced  his  disability,  and  whether  or  not 
such  disability  was  contracted  in  the  line  of  duty.     The 
finding  of   the  board  must  be  stated  as  follows:  "The 
board  is  of  fhe  opinion  that  -        -  is  physically  incapaci- 
tated for  service.     His  disability  is  due  to  -        -  and  was 
contracted  in  the  line  of  duty  ";  and  this  is  authenticated 
by  the  signatures  of  all  members,  including  medical  officers. 
If  any  member  dissents  from  the  opinion  of  the  board,  it 
will  be  so  stated.     If  the  incapacity  is  found  to  be  the  result 
of  an  incident  of  the  service,  and  the  proceedings  of  the 
board  are  approved  by  the  proper  authority,  the  officer  is 
retired  with  the  rank  to  which  his  seniority  entitled  him, 
whenever  a  vacancy  occurs  that  otherwise  would  result  in 
his  promotion  on  the  active  list;  provided  he  has  not  been 
placed  on  the  retired  list  before  the  vacancy  occurs.1 

520.  The  officer  whose  physical  incapacity  is  brought 
into  question  should  have  the  same  right  to  introduce  evi- 
dence, examine  and  cross-examine  witnesses  as  if  before  a 
retiring  board. 

521.  If  anything  should  arise  during  the  examination 
requiring  the  introduction  of  evidence,  the  inquiry  should 
proceed  upon  written  interrogatories  as  far  as  possible,  the 
board  determining  to  whom  questions  shall  be  forwarded, 
and  be  conducted  according  to  the  procedure  of  courts- 
martial.    When,  in  the  opinion  of  the  board,  it  becomes 

1  See  Act  Oct.  1,  1890;  G.  O.  81,  War  Department,  1904;  G.  O.  128 
War  Department, .  1-906. 


236  MILITARY  LAW 

essential  to  take  oral  testimony,  the  fact  should  be  re- 
ported to  the  War  Department  for  the  necessary  orders 
in  regard  to  witnesses  to  be  summoned  from  a  distance. 
Witnesses  examined  orally  are  sworn  by  the  recorder. 

522.  All  public  proceedings  shall  be  in  the  presence  of 
the  officer  under  examination;    the  conclusions  reached 
and  the  recommendations  entered  in  each  case  shall  be 
regarded  as  confidential.1 

523.  Medical  officers  do  not  take  part  in  the  professional 
examinations,  except  in  cases  of  assistant  surgeons.     They 
make  the  necessary  physical  examination  and  report  their 
opinion  in  writing  to  the  board.     All  questions  relating  to 
the  physical  fitness  of  the  officer  are  to  be  determined  by 
the  full  board.2 

524.  The  finding  of  the  board  of  examination  that  the 
officer  is  incapacitated  for  duty  is  not  per  se  final,  but  must 
be  reported  for  the  action  of  the  Secretary  of  War  and  be 
acted  upon  by  him.     Where  the  finding  and  report  of  the 
board  have  been  approved  but  not  yet  executed  by  actual 
retirement,  there  may  intervene  contingencies  which  would 
supersede  such  proceeding,  as  the  trial  and  dismissal  of  an 
officer  by  court-martial,  or  the  arising  of  new  causes  which 
might  make  it  proper  that  the  question  of  his  disability 
be  inquired  into  by  a  retiring  board  under  Section  1246, 
Revised  Statutes  United  States. 

But  unless  some  such  new  occasion  and  ground  of  dis- 
qualification be  presented,  the  action  of  the  Secretary  of 
War,  in  approving  the  report,  remains  final  and  exhaustive, 
and  the  officer  is  entitled  to  be  retired  under  the  Act  of 
October  1,  1890,  and  cannot  legally  be  ordered  before  such 
retiring  board.3 

(For  regulations  prescribed  by  the  President,  methods 
of  procedure,  subjects  for  examination,  etc.,  see  General 
Orders  128,  War  Department,  1906.) 

1  G.  O.  81,  War  Department,  1904. 

2  Id.;  G.  O.  128,  Id.,  1906.  3  Dig.  Op.  J.  A.  G.  2207. 


CHAPTER  XXVIII 
BOARDS— SURVEYS  ON  PROPERTY 

525.  Boards  of  officers  are  authorized  for  certain  pur- 
poses, by  law  and  by  regulations,  such  as  retiring  boards, 
boards  for  the  examination  of  officers  for  promotion; 1 
or  for  examination  of  enlisted  men  for  promotion,  or  of 
civilians  for  appointment  to  the  grade  of  second  lieutenant 
in  the  Army,  etc. 

When  it  is  prescribed,  the  members  and  the  recorder, 
if  one,  are  duly  sworn  to  a  faithful  and  impartial 
performance  of  their  duties.  In  boards  for  retirement  of 
officers,  or  for  examination  of  officers  for  promotion,  or 
enlisted  men  for  advancement,  or  of  civilians  for  appoint- 
ment to  the  grade  of  second  lieutenant,  two-fifths  of  the 
board  must  be  medical  officers. 

526.  Boards  are  also  appointed  for  special  purposes,  as 
for  determining  whether  a  soldier's  service  has  been  honest 
and  faithful; 2  to  make  an  inventory  and  return  of  public 
property  in  charge  of  officers  who  die  or  become  insane  in 
the  service;  3  to  investigate  the  loss  or  destruction  of  private 
property  of  officers  and  enlisted  men  in  the  military  ser- 
vice; 4  and  whenever  any  investigation  is  to  be  made  in  any 
matter  relating  to  the  military  service  not  otherwise  pro- 
vided for,  the  proper  commanding  officer,  or  the  Secretary 
of  War,  may  appoint  an  officer  or  a  board  of  officers  for 
the  purpose. 

1  See  Chapter  XXVII. 

'A.  R.  146. 

8  A.  R.  86;  see  Art.  125,  post,  par.  832. 

4  A,  R.  729;  Act  of  March  3,  1885. 

237 


238  MILITARY  LAW 

527.  Organization. — The  organization,  purpose,  method 
of  procedure,  and  requirements  of  each  board  are  speci- 
fied in  the  law,  regulations,  or  orders  authorizing  it.1 

528.  Oath  of  Members. — The  oath  taken  by  the  mem- 
bers and  recorder,  where  prescribed  by  law,  requires  faith- 
ful  and  impartial  performance  of  the  duties  devolving 
upon  them;    where  no  oath  for  members  or  recorder  is 
prescribed  they  act  upon  their  oath  of  office. 

529.  Oath  of  Witnesses. — Under  the  provisions  of  the 
Act  of  March  2,  1901:  "Any  officer  or  clerk  of  any  of  the 
departments  lawfully  detailed  to  investigate  frauds  on, 
or  attempts  to  defraud,  the  government,  or  any  irregular- 
ity or  misconduct  of  any  officer  or  agent  of  the  United 
States,  and  any  officer  of  the  Army  detailed  to  conduct  an 
investigation,  and  the  recorder,  and,  if  there  be  none,  the 
presiding  officer  of  any  military  board  appointed  for  such 
purpose,  shall  have  authority  to  administer  an  oath  to 
any  witness  attending  to  testify  or  depose  in  the  course 
of  such  investigation."     And  where  they  testify  orally 
the  oath  administered  is  similar  to  that  prescribed  for 
witnesses  before  a  court-martial  (Art.  92). 

530.  Record. — The  record  is  made  up  by  the  recorder, 
or,  if  there  be  none,  by  the  junior  member  of  the  board, 
in  a  manner  similar  to  that  of  courts-martial  or  courts  of 
inquiry,  but,  where  not  otherwise  provided,  it  is  authen- 
ticated by  the  signatures  of  all  the  members  of  the  board. 
The  report  need  not  necessarily  be  unanimous,  but  any 


1  For  retiring  boards  and  for  boards  of  examination  of  officers  for 
promotion  under  Act  of  October  1,  1890,  see  Chapter  XXVII;  A.  R. 
76-78;  G.  O.  128  and  143,  War  Department,  1906.  For  boards  of 
examination  of  enlisted  men  for  advancement  to  the  grade  of  second 
lieutenant,  see  G.  O.  93,  War  Department,  1906;  paragraphs  27  to 
33,  A.  R.,  as  amended  by  G.  O.  53,  War  Department,  1906,  and 
G.  O.  148,  War  Department,  1906.  For  boards  of  examination  of  civ- 
ilians selected  for  appointment  as  second  lieutenants  in  the  Army,  see 
G.  O.  71,  1902;  G.  O.  55,  War  Department,  1904;  G.  O.  131,  War 
Department,  1906;  G.  O.  148,  War  Department,  1906;  and  paragraphs 
34  to  37,  A.  R.,  as  amended  by  G.  O.  91,  War  Department,  1906. 


BOARDS— SURVEYS  ON  PROPERTY       239 

member  may  make  and  sign  a  minority  report.  The  re- 
ports of  such  boards  do  not  become  effective  until  they 
have  received  the  sanction  of  the  convening  authority, 
and  that  authority  may,  if  he  deems  any  report  incom- 
plete or  irregular,  or  that  the  matter  requires  additional 
investigation,  return  it  to  the  board  for  its  further  action. 

BOARDS   UNDER   THE   54TH   ARTICLE   OF  WAR 

53 1 .  By  the  provisions  of  the  54th  Article  of  War,  it  is 
made  the  duty  of  a  commanding  officer,  upon  complaint 
made  to  him,  to  see  justice  done  to  the  offender,   and 
reparation  made  to  the  party  or  parties  injured  by  any 
officer  or  soldier  under  his  command,  from  the  pay  of  those 
who  are  guilty  of  abuses  or  disorders  committed  against 
citizens. 

This  not  only  requires  the  punishment  of  the  offender 
by  bringing  him  before  a  court-martial  for  trial  under 
charges,  but  money  reparation  also. 

532.  This  Article  has  been  construed  to  mean  reparation 
for  injury  to  the  property  as  well  as  to  the  person  of  the 
citizen.     The  amount  of  damage  is  assessed  by  a  board 
of  officers  convened  therefor  by  the  commanding  officer 
of  the  troops.     The  amount  so  assessed  is  stopped  against 
the  offenders  and  reparation  made  to  the  injured  party. 
This  proceeding  is  entirely  independent  of  any  trial  or  sen- 
tence of  a  court-martial  for  the  criminal  offense; l   nor 
does  the  reparation  made,  or  trial  by  court-martial,  pre- 
vent trial  by  civil  courts  for  violation  of  the  "laws  of  the 
land." 

533.  Procedure. — The  citizen  aggrieved  tenders  a  " com- 
plaint" under  oath,  charging  the  injury  against  a  par- 
ticular soldier  or  soldiers,  described  by  name  (if  known), 
regiment,  etc.,  and  accompanied  by  evidence  of  the  injury, 
and  of  the  instrumentality  of  the  person  or  persons  accused. 

»  Dig.  Op.  J.  A,  G.  78,  note. 


240  MILITARY  LAW 

If  such  evidence  be  satisfactory,  the  commanding  officer 
has  the  damage  assessed  by  a  board  and  makes  order  for 
such  stoppage  of  pay  as  will  be  sufficient  for  the  "repara- 
tion" enjoined  by  the  article.  The  commander  must 
have  a  proper  case  presented  to  him;  he  cannot  legally 
proceed  of  his  own  motion.1  And  when  proof  has  been 
duly  made  that  the  injury  has  been  done  by  some  persons 
of  a  command,  but  the  active  perpetrators  cannot,  upon 
investigation,  be  determined,  and  it  appears  that  the  entire 
command  was  present  and  implicated,  the  stoppage  may 
be  legally  made  against  all  the  individuals  present.2 

534.  Purpose  of  Stoppage.— The  pay  of  the  offenders 
can  be  resorted  to  only  for  the  purpose  of  " reparation." 
A  military  commander  has  no  authority  to  add  a  further 
amount  of  stoppage  as  a  punishment.3 

The  stoppage  must  be  made  for  injuries  to  a  citizen, 
not  a  military  person;  it  cannot  be  made  in  favor  of  the 
United  States,  or  to  indemnify  parties  for  property  stolen 
or  embezzled.4 

535.  The  number  of  members  on  such  a  board  is  not 
prescribed  by  law  but,  usually,  the  commanding  officer 
designates  from  three  to  five  members,  the  junior  being 
the  recorder.    They  are  not  sworn,  but  act  under  their 
oath  of  office.     Their  report  is  effective  when  approved 
by  the  convening  authority  and,  if  damage  is   assessed, 
the  commanding  officer  directs  the  amount  of  the  stoppage 
to  be  placed  upon  the  pay  rolls  of  the  soldiers  implicated 
and  sees  that  the  money  reparation  is  made  to  the  citizen. 

SURVEYS  OF  PROPERTY — THE  SURVEYING  OFFICER 

536.  The  investigation  of  questions  relating  to  responsi- 
bility arising  in  connection  with  public  property  was  form- 

1  Dig.  Op.  J.  A.  G.  84;   Davis'  Military  Law,  p.  435. 

2  Dig.  Op.  J.  A.  G.  85. 
'Id.  82. 

4  Id.  81. 


BOARDS— SURVEYS  ON  PROPERTY       241 

erly  made  by  a  board  of  officers  called  a  "  board  of  survey." 
But  this  board  has  been  replaced  by  a  single  officer  called 
the  " surveying  officer/'  who  is  preferably  the  summary 
court  officer. 

537.  Jurisdiction. — " Surveys  on  property"  are  pro- 
vided for  by  Army  Regulations  for  the  purpose  of  investi- 
gation of  questions  of  responsibility  arising  in  connection 
with  the  receipt,  issue,  distribution,  use,  or  preservation 
of  public  property. 

All  public  property  which  has  been  damaged,  except 
by  fair  wear  and  tear,  or  is  unsuitable  for  the  service,  will 
be  surveyed  by  a  disinterested  officer,  preferably  the  sum- 
mary court  officer.1 

He  may  examine  the  contents  of  packages,  verify  their 
correctness,  and  should  report  the  condition  of  stores  sub- 
mitted to  him  for  examination,  and  fix  the  responsibility 
for  damage,  loss,  or  deficiency.  He  is  not  sworn,  but  acts 
under  the  sanction  of  his  oath  of  office.  He  cannot  com- 
pel the  attendance  of  witnesses,  but  he  has  authority  "to 
administer  an  oath  to  any  witness  attending  to  testify  or 
depose  in  the  course  of  such  investigation." 2  On  his 
recommendation,  duly  approved,  public  animals  may  be 
killed  to  prevent  contagion  or  terminate  suffering;  and  the 
following  classes  of  property  may  be  destroyed,  viz.: 
clothing  infected  with  contagious  disease  and  stores  that 
have  become  so  deteriorated  as  to  endanger  health  or  in- 
jure other  stores.  Unserviceable  property  of  no  salable 
value,  submitted  to  a  surveying  officer  under  par.  682 
(A.  R.),  may  be  likewise  destroyed  if  it  is  impracticable 
to  obtain  the  action  of  an  inspector  on  such  property  within 
a  reasonable  time. 

This  paragraph  will,  in  its  application  to  ordnance  stores, 
be  limited  to  utterly  worthless  articles  constituting  the 
soldier's  personal  equipments  (not  arms),  horse  equipments, 
1  A.  R.  713.  2  A.  R.  717. 


242  MILITARY  LAW 

and  target  material,  the  cost  price  of  which  does  not 
exceed  $100  for  mounted  organizations  and  $50  for  others. 
In  each  case  the  report  will  give  the  dates  of  receipt  of 
the  stores  surveyed.1 

538.  Before  ordering  the  destruction  of  property  or  stores 
under  this  paragraph  the  commanding  officer  will  per- 
sonally inspect  the  same  and  will  be  held  responsible  that 
the  conditions  justify  the  action.     In  case  the  invoice 
value  of  the  stores  involved  exceeds  $500  the  approval  of 
the  next  higher  commander  must  be  obtained  before  de- 
struction of  the  property,  as  provided  in  paragraph  722, 
A.  R.     A  certificate  of  the  witnessing  officer  that  the 
property  has  been  destroyed  as  authorized  will  be  ap- 
pended to  the  report.1 

539.  Constitution. — The  surveying  officer  will  be  desig- 
nated by  the  commanding  officer  of  the  regiment,  separate 
battalion,  post,  or  station.    He  may,  however,  be  appointed 
by  the  commanding  officer  of  a  territorial  division  or  de- 
partment, an  army  corps,  division,  or  brigade.     If  none 
but  the  commanding  officer  and  interested  officers  be  pre- 
sent for  duty,  then  the  commanding  officer  will  survey  the 
property.     When  only  the  responsible  or  interested  officer 
is  present,  he  will  not  appoint  himself  surveying  officer, 
but  will  furnish  the  next  higher  commander  his  certifi- 
cate of  facts  and  circumstances,  supported  by  testimony  of 
witnesses,  or  by  the  affidavits  of  enlisted  men  or  others 
who  are  cognizant  thereof.     Should  the  case  thus  pre- 
sented be  considered  not  satisfactory,   or  in  a  case  in 
which  only  interested  officers  with  opposing  interests  are 
present  for  duty  at  the  post  or  station,  the  next  higher 
commander  will   make   the  necessary  investigation.     In 
cases  where  the  property  in  question  has  been  previously 
acted  upon,  the  officer  making  the  investigation  will  be 

1  A.  R.  720;  G.  O.  71,  War  Department,  1905;   G.  O.  106 .  War  De- 
partment, 1906. 


BOARDS— SURVEYS  ON  PROPERTY       243 

so    informed    and    the    previous    reports    will   be    con- 
sidered.1 

540.  Procedure. — The  surveying  officer  must  fully  in- 
vestigate matters  submitted  to  him.     He  will  call  for  all 
evidence  attainable,  and  will  not  limit  his  inquiries  to 
proofs  or  statements  presented  by  the  parties  in  interest. 
He  will  rigidly  scrutinize  the  evidence,  especially  in  cases 
of  alleged  theft  or  embezzlement,  and  will  not  recommend 
the  relief  of  officers  or  soldiers  from  responsibility  unless 
fully  satisfied  that  those  charged  with  the  care  of  the 
property  have  performed  their  whole  duty  in  regard  to  it. 
He  should  hear  in  person  or  by  deposition  all  persons 
concerned  in  the  subject  matter  before  him.     In  no  case, 
however,  will  his  report  take  the  place  of  evidence  re- 
quired in  paragraph  687,  A.  R.,  which  is  to  the  effect  that 
"  officers  responsible  for  property  will  be  charged  for  any 
damage  to  or  loss  or  destruction  of  the  same,  and  the  money 
value  be  deducted  from  their  monthly  pay,  unless  they 
show,  to  the  satisfaction  of  the  Secretary  of  War,  by  their 
own  affidavits  or  certificates,  or  by  one  or  more  depositions, 
that  the  damage,  loss,  or  destruction  was  occasioned  by 
unavoidable  causes  and  without  fault  or  neglect  on  their 
part."  2 

541.  Evidence. — The  party  responsible  for  the  property 
to  be  surveyed  will  in  all  cases  furnish  the  original  certifi- 
cates or  affidavits,  or  the  testimony  of  the  witnesses  upon 
which  he  relies  to  relieve  him  from  responsibility,  and  the 
number  of  duly  attested  copies  of  such  affidavits  and 
certificates  required  to  accompany  the  report.3 

542.  No  Power  to  Condemn. — The  power  of  the  sur- 
veying officer  is  restricted  to  a  recommendation,  based 
upon  the  evidence  before  him,  as  to  responsibility  with 
respect  to  the  matters  referred  to  him.     The  surveying 
officer  cannot  condemn  public  property;    his  action  is 

1  A.  R.  714.  2  A.  R.  715.  *  A.  R.  716. 


244  MILITARY  LAW 

purely  advisory.  He  will  ascertain  and  report  facts  con- 
cerning the  matter  he  is  directed  to  investigate,  sub- 
mitting opinions  and  making  recommendations  upon 
questions  of  responsibility  which  may  arise  through  acci- 
dent, mistake,  or  neglect.1  The  power  to  condemn  is 
vested,  in  accordance  with  Sec.  1241,  Revised  Statutes, 
in  officers  specially  designated  by  the  Secretary  of  War 
for  that  purpose. 

543.  Report. — The  report  of  the  surveying  officer  will 
be  prepared  in  triplicate  and  will  then  be  submitted  to 
the   convening   authority   for   approval   or    disapproval. 
Separate  reports  will  be  made  for  each  staff   department 
concerned.2 

544.  Approval,   Confirmation,   etc. — When  the  value 
of  the  property  submitted   for   survey  or   the    loss    or 
damage  to  be  inquired  into  does  not  exceed  $500,  and  the 
interested  officer  does  not  request  the  department  com- 
mander's action,  the  report  will  be  considered  complete, 
for  submission  as  a  property  voucher,  upon  the  approval 
of  the  appointing  authority.     One  copy  will  then  be  for- 
warded to  department  headquarters  and  the  others  de- 
livered to  the  officer  accountable.3 

545.  Should  the  appointing  authority  be  the  respon- 
sible or  interested  officer,  or  should  the  report  be  disap- 
proved by  the  appointing  authority,  or  should  the  report 
hold  the  accountable  officer  responsible,  or  should  the  value 
of  the  property  submitted  for  survey  or  the  loss  or  damage 
to  be  inquired  into  exceed  five  hundred  dollars,  or  should 
the  officer  pecuniarily  interested  request  it,  the  report  in 
triplicate  will  be  forwarded  to  the  next  higher  commander 
for  review,  and  with  his  action  is  complete.     But  all  reports 
of  surveys  of  property,   whatever   their  nature   or   the 
amounts  involved,  are  subject  on  call  to  such  review  of 
the  next  higher  commander  as  the  merits  of  the  case  or 

1  A.  R.  718.  2  A  R.  719.  3  A.  R.  721. 


BOARDS— SURVEYS  ON  PROPERTY       245 

the  interests  of  the  Government  may  require.  When  a 
next  higher  commander  acts  on  a  report  of  survey,  as 
herein  contemplated,  he  will  cause  such  action  to  be  noted 
on  all  three  copies  of  the  report.  One  copy  will  then  be 
filed  at  department  headquarters,  and  the  others  sent  to 
the  accountable  officer  except  when  the  latter  is  held 
responsible,  when  one  copy  only  will  be  sent  to  him  and 
the  remaining  copy  forwarded  directly  to  the  chief  of 
bureau  to  which  the  property  pertains.1 

The  reports  of  a  survey  which  recommend  the  relief  of 
officers  and  enlisted  men  from  responsibility  should  not 
be  approved  unless  full  and  careful  investigation  and  con- 
vincing proof  to  sustain  the  findings  appear.2 

546.  Survey  in  Case  of  Desertion. — When  a  soldier 
deserts,  his  immediate  commanding  officer  will  at  once 
ascertain  if  any  public  property  has  been  lost  in  con- 
sequence thereof,  and,  if  so,  will  proceed  as  in  the  case  of 
property  lost  or  destroyed,  and  the  value  of  the  articles 
lost  will  be  charged  against  the  deserter  on  the  next 
muster  rolls  of  his  company.3 

1  A.  R.  722;  G.  O.  170,  War  Department,  1905;   G.  O.  53,  War  De- 
partment, 1906. 

2  A.  R.  723. 

3  A.  R.  114. 


CHAPTER  XXIX 
EVIDENCE 

EULES    OF    EVIDENCE    APPLIED    BY    COURTS-MARTIAL 

547.  Courts-martial  are  controlled,  in  general,  by  the 
rules   of  evidence  which  govern  United  States  courts  in 
the  trial  of  criminal  cases.1     Whenever  Congress  estab- 
lishes a  new  judicature  or  court  of  justice,  and  does  not 
provide,  and  no  special  reason  demands,  a  different  rule, 
the  rules  of  evidence  as  found  in  the  common  law  ought  to 
govern  its  action.2 

The  rules  applicable  to  civil  courts  are  not  strictly  bind- 
ing upon  courts-martial,  since  such  courts  are  not  a  part  of 
the  judiciary  of  the  United  States  as  organized  under  the 
Constitution,  but  are  executive  agencies  for  the  enforce- 
ment of  military  discipline.  They  proceed  by  trial  of 
military  offenders,  upon  proper  accusations  referred  to 
them  therefor,  and  recommend  suitable  punishments;  but 
their  judgment  is  without  effect  until  approved  by  that 
officer  of  the  military  establishment  who  is  authorized  by 
law  to  review  the  same. 

548.  The  purpose  of  such  courts-martial  is  to  do  justice 
and  if  the  effect  of  a  technical  rule  is  found  to  exclude 
material  facts,  or  otherwise  obstruct  a  full  investigation, 
the  rule  may,   and  should   be,    departed  from.     Proper 

1  3  Greenleaf  Ev.,  Sec.  476;  case  Cadet  Whittaker,  17  Op.  Atty.-Gen. 
310. 

2  See  Moore  v.  U.  S.,  91  U.  S.  274;   Simmons  on  Court-martial,  Sec. 
810. 

246 


EVIDENCE  247 

occasions  for  such  departure  will,  however,  be  exceptional 
and  infrequent.1  These  courts  cannot,  however,  compel 
a  witness  to  incriminate  himself,  or  to  answer  any  ques- 
tion that  may  tend  to  incriminate  or  degrade  him.2 

When  any  departure  from  the  rules  of  evidence  is  such 
that,  in  the  opinion  of  the  reviewing  authority,  injustice 
has  been  done,  it  will  afford  good  ground  for  disapproval 
of  the  proceedings,  findings,  and  sentence.  Courts  should, 
therefore,  refrain  from  any  departure  from  the  established 
rules  of  evidence,  except  when  convinced,  after  due  con- 
sideration, of  the  necessity  therefor  to  secure  the  ends  of 
justice. 

549.  United    States    courts    and    courts-martial     are 
governed  by  the  common  law  rules  of  evidence  existing 
and  in  use  at  the  time  the  courts  of  the  United  States 
were  established  by  the  Judiciary  Act  of  1789,  under  the 
Constitution,3  as  since  modified  by  statutory  provisions. 
The  United  States  has  never  adopted,  by  statutory  pro- 
vision, any  system  of  " rules  of  evidence."     These  com- 
mon law  rules  have,  however,  been  adopted  in  practice 
and  enforced  by  the  decisions  of  the  courts. 

550.  These  rules  have  been  modified,  and  the  following 
are  some  of  the  modifications  which  affect  their  applica- 
tion by  courts-martial,  viz. : 

a.  That  every  person  who  is  convicted  of  perjury  or 
subornation  of  perjury,  under  the  laws  of  the  United 
States,  shall  be  incapable  of  giving  testimony  in  any 
court  of  the  United  States,  until  the  judgment  against 
him  is  reversed.4 

6.  An  accused  shall  at  his  own  request,  but  not  other- 
wise, be  a  competent  witness;  and  his  failure  to  make 
such  request  shall  not  create  any  presumption  against  him.5 

1  Winthrop,  Military  Law,  Vol.  1,  p.  443. 

2  Act  March  2,  1901. 

8  See  Logan  v.  U.  S.,  144  U.  S.  301;  ante,  par.  238. 
4  Sec.  5392  and  5393,  R.  S. 
6  Act  March  16,  1878. 


248  MILITARY  LAW 

c.  No  witness  shall  be  compelled  to  incriminate  himself 
or  to  answer  any  questions  which  may  tend  to  incriminate 
or  degrade  him.1 

EVIDENCE 

551.  "The  word  'evidence/  considered  in  relation  to 
law,  includes  all  the  legal  means,  exclusive  of  mere  argu- 
ment, which  tend  to  prove  or  disprove  any  matter  of  fact, 
the  truth  of  which  is  submitted  to  judicial  investigation."  2 

The  law  of  evidence  relates  to  its  use  before  judicial 
tribunals;  and  it  prescribes  the  rules  which  govern  the 
admissibility  of  evidence  and  the  manner  in  which  it  shall 
be  presented  to  the  court,  the  competency  of  witnesses, 
and,  to  a  certain  extent,  their  credibility,  or  the  weight 
to  be  given  to  their  testimony. 

552.  Classification. — Evidence  is  susceptible  of  several 
classifications.     It  may  be  divided  according  to  its  char- 
acter into: 

1st.  Primary  and  Secondary.  Primary  evidence  is  that 
kind  of  evidence  which,  under  every  possible  circumstance, 
affords  the  greatest  certainty  of  the  fact  in  question. 
Thus,  a  written  instrument  is  the  best  possible  evidence 
of  its  existence  and  contents. 

Secondary  evidence  is  that  which  is  inferior  to  primary. 
Thus,  a  copy  of  an  instrument,  or  oral  evidence  of  its  con- 
tents, is  secondary  evidence  of  the  instrument  and  its 
contents. 

2d.  Direct  and  Indirect.  Direct  evidence  is  that  which 
proves  the  fact  in  dispute  directly,  without  any  inference 
or  presumption,  and  which  in  itself,  if  true,  conclusively 
establishes  that  fact. 

Indirect  evidence  is  that  which  tends  to  establish  the 
fact  in  dispute  by  proving  another,  and  which,  though 

1  Act  March  2,  1901. 

2  Taylor,  Ev.,  p.  1;  McKelvey,  Ev.,  p.  7,  note. 


EVIDENCE  249 

true,  does  not  of  itself  conclusively  establish  that  fact, 
but  which  affords  an  inference  or  presumption  of  its  ex- 
istence.1 

553;  Evidence  may  also  be  divided  according  to  its 
nature,  into: 

1st.  Circumstantial  Evidence.  This  is  proof  of  various 
facts  or  circumstances  which  usually  attend  the  main  fact 
in  dispute,  and  therefore  tend  to  prove  its  existence,  or  to 
sustain,  by  their  consistency,  the  hypothesis  claimed.  It 
consists  in  reasoning  from  facts  which  are  known  or  proved, 
to  establish  such  as  are  conjectured  to  exist.2 

2d.  Presumptive  Evidence.  "  This  consists  of  inferences 
drawn  by  human  experience  from  the  connection  of  cause 
and  effect  and  observations  of  human  conduct." 

3d.  Prima  Facie  Evidence.  "  This  is  that  evidence  which 
suffices  for  the  proof  of  a  particular  fact,  until  contradicted 
and  overcome  by  other  evidence."  It  is  evidence  which, 
standing  alone  and  unexplained,  would  maintain  the  prop- 
osition and  warrant  the  conclusion  to  support  which  it  is 
introduced. 

4th.  Partial  Evidence.  "  Partial  evidence  is  that  which 
goes  to  establish  a  detached  fact,  in  a  series  tending  to  the 
fact  in  dispute.  It  may  be  received,  subject  to  be  rejected 
as  incompetent,  unless  connected  with  the  fact  in  dispute 
by  proof  of  other  facts." 

5th.  Satisfactory  Evidence.  "That  evidence  is  deemed 
satisfactory  which  ordinarily  produces  moral  certainty  or 
conviction  in  an  unpre j  udiced  mind. ' '  Such  evidence  alone 
will  justify  a  verdict.  Evidence  less  than  this  is  denomi- 
nated "  slight  evidence." 

6th.  Conclusive  Evidence.  "Conclusive  or  unanswer- 
able evidence  is  that  which  the  law  does  not  permit  to  be 
contradicted;  for  example,  the  record  of  a  court  of  com- 

1  Black's  Law  Dictionary. 

2  People  v.  Kennedy,  32  N.  Y.  141. 


250  MILITARY  LAW 

petent  jurisdiction  cannot  be  contradicted  by  the  parties 
to  it." 

7th.  Indispensable  Evidence.  "  Indispensable  evidence 
is  that  without  which  a  particular  fact  cannot  be  proved." 

8th.  Documentary  Evidence.  "This  evidence  is  that 
derived  from  conventional  symbols  (such  as  letters)  by 
which  ideas  are  represented  on  material  substances." 

9th.  Hearsay  Evidence.  "  Hearsay  evidence  is  the 
evidence,  not  of  what  the  witness  knows  himself,  but  of 
what  he  has  heard  from  others."  1 

10th.  Real  Evidence.  Real  evidence  is  the  evidence  of 
the  thing  or  object  which  is  itself  produced  in  court  for  the 
inspection  of  the  tribunal,  with  proper  testimony  as  to  its 
identity.2 

554.  With  respect  to  its  object,  evidence  may  also  be 
divided  into : 

1st.  Substantive  Evidence.  "Substantive  evidence  is 
that  adduced  for  the  purpose  of  proving  a  fact  in  issue,  as 
opposed  to  evidence  given  for  the  purpose  of  discrediting  a 
witness  (i.e.,  showing  that  he  is  unworthy  of  belief),  or  of 
corroborating  his  testimony." 

2d.  Corroborative  Evidence.  "Corroborative  evidence 
is  additional  evidence  of  a  different  character  to  the  same 
point." 

3d.  Cumulative  Evidence.  "Cumulative  evidence  is 
additional  evidence  of  the  same  character  to  the  same 
point."  3 

GENERAL  RULES   GOVERNING   THE   INTRODUCTION   OF 
EVIDENCE 

555.  The  general  rules  governing  the  introduction  of 
evidence  are: 

1  Black's  Law  Dictionary. 

2  Davis'  Military  Law,  263;  1  Greenl.,  Ev.,  Sec.  13a,  note. 
6  Black's  Law  Dictionary. 


EVIDENCE  251 

a.  That  the  evidence  must  correspond  to  the  allega- 
tions, and  be  confined  to  the  point  in  issue. 

b.  That  it  is  sufficient  if  the  substance  only  of  the  issue 
be  proved. 

c.  That  the  burden  of  proving  the  proposition,  or  issue, 
lies  on  the  party  holding  the  affirmative. 

d.  The  best  evidence  of  which  the  case,  in  its  nature,  is 
susceptible  must  always  be  produced.1 

PRIMARY   AND   SECONDARY   EVIDENCE 

556.  Primary    Evidence.— Primary    evidence    is    the 
original  and  best  evidence;  it  affords  the  most  direct  and 
best  proof  of  any  fact,  and  must  always  be  produced 
before  the  court  if  within  the  power  of  the  party  to  pro- 
duce it. 

The  law,  however,  makes  some  exceptions  to  the  gen- 
eral rule  and  provides  for  the  substitution  of  other  evi- 
dence which  shall  be  received  with  the  same  authority  as 
the  original. 

557.  Public  Documents. — Public    documents,    as   other 
writings,  are  the  best  evidence  of  their  own  existence  and 
contents;    but  it  would  impede  the  work  of  the  depart- 
ments and  interfere  with  the  regular  functions  of  govern- 
ment if  the  original  records  and  documents  in  its  care 
could  be  taken  from  their  place  of  keeping  and  the  care 
of  their  proper  custodian;  so  that  Congress  has  made  pro- 
vision for  securing  evidence  from  them  by  other  means. 

The  law  now  provides  that  "  copies  of  any  books,  records, 
papers,  or  documents  in  any  of  the  Executive  Departments, 
authenticated  under  the  seals  of  such  Departments,  re- 
spectively, shall  be  admitted  in  evidence  equally  with 
the  originals  thereof."  2 

In  order  to  give  full  effect  to  the  provisions  of  the  Con- 

1  1  Greenl.,  Ev.,  Sec.  50.  2  Sec.  882,  R.  SP 


252  MILITARY  LAW 

stitution  that  "Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  state,"  1  Congress  has  by  law  provided  that 
"the  acts  of  the  legislature  of  any  State  or  Territory,  or 
of  any  country  subject  to  the  jurisdiction  of  the  United 
States,  shall  be  authenticated  by  the  seals  of  such  State, 
Territory,  or  country  affixed  thereto.  The  records  and 
judicial  proceedings  of  the  courts  of  any  State  or  Terri- 
tory, or  of  any  such  country,  shall  be  proved  or  admitted 
in  any  other  court  within  the  United  States,  by  the  attesta- 
tion of  the  clerk,  and  the  seal  of  the  court  annexed,  if 
there  be  a  seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  or  presiding  magistrate,  that  the  said  attes- 
tation is  in  due  form.  And  the  said  records  and  judicial 
proceedings,  so  authenticated,  shall  have  such  faith  and 
credit  given  to  them  in  every  court  within  the  United 
States  as  they  have  by  law  or  usage  in  -the  courts  of  the 
State  from  which  they  are  taken."  2 

Provision  is  also  made  for  proof  of  records  and  exem- 
plifications of  books  kept  in  public  offices  not  appertaining 
to  courts,  by  the  attestation  of  the  keeper  of  said  records 
or  books,  and  the  seal  of  his  office  annexed,  if  there  be  a 
seal,  together  with  the  certificate  of  the  presiding  justice 
of  the  court  of  the  county,  parish,  or  district  in  which 
such  office  may  be  kept,  or  of  the  governor,  or  secretary 
of  state,  the  chancellor  or  keeper  of  the  great  seal,  of  the 
State,  or  Territory,  or  country,  that  the  said  attestation 
is  in  due  form,  and  by  the  proper  officers.3 

By  these,  and  other  similar  provisions  of  law,  documents 
are  authenticated,  in  conformity  with  the  statutes,  by 
the  seal  of  the  office  from  which  they  issue,  and  the  docu- 
ments so  attested,  when  certified  by  the  designated  official, 
are  given  the  full  value  in  evidence  of  the  originals.  The 

1  Constitution  of  United  States,  Art.  IV,  Sec.  1. 

2  Sec.  905,  R.  S. 

3  Sec.  906,  R.  S. 


EVIDENCE  253 

proper  mode  of  proving  papers  on  file,  in  any  of  the  de- 
partments or  public  offices  of  the  government,  is  by  pro- 
curing certified  copies  from  those  persons  who  have  them 
in  custody.1 

558.  War  Department  Records. — The  copies  of  any  records 
or  papers  in  the  War  Department  or  any  of  its  bureaus,  if 
authenticated  by  the  impressed  stamp  of  the  bureau  or 
office  having  custody  of  the  originals,  may  be  admitted  in 
evidence  equally  with  the   originals   thereof   before  any 
court-martial,  court  of  inquiry,  or  in  any  administrative 
matter  under  the  War  Department.2 

559.  Foreign   Laws,   Judgments,    etc. — The   laws    of   a 
foreign  country  are  not  noticed  by  other  countries  unless 
proved  as  facts,  and  the  sanction  of  an  oath  is  required 
for  their  establishment   unless  they  can  be  verified  by 
some  other  high  authority  that  the  law  respects  not  less 
than  the  oath  of  an  individual.3    The  courts  of  one  State 
are  not  presumed  to  know,  and  therefore  are  not  bound 
to  take  judicial  notice  of,  the  laws  of  another  State;   they 
must  be  proved.4 

560.  Foreign  laws  or  judgments,  therefore,  are  authen- 
ticated: 

a.  By  an  exemplification  under  the  great  seal  of  the 
state. 

6.  By  a  copy  proved,  under  attestation  by  oath,  to  be 
a  true  copy. 

c.  By  the  certificate  of  an  officer  authorized  by  law, 
which  certificate  must  itself  be  properly  authenticated. 

If  all  these  methods  are  beyond  the  reach  of  the  party, 
other  testimony,  inferior  in  its  nature,  may  be  received.5 

But  foreign  unwritten  laws,  customs,  and  usages  may 

1  Barney  v.  Schmeider,  9  Wall.  (76  U.  S.)  248. 
2G.  O.  91;  A.  G.  O.  1900. 

3Talbot  v.  Seeman,  1  Cr.  (5  U.  S.)  38;    Church  v.  Hubbart,  2  Cr 
(6  U.  S.)  237;   Ennis  v.  Smith,  14  How.  (55  U.  S.)  426. 
4  Hanley  v.  Donoghue,  116  U.  S.  4. 
6  Church  v.  Hubbart,  2  Cr.  (6  U.  S.)  238. 


254  MILITARY  LAW 

be  proved  by  persons  competent,  from  their  knowledge 
thereof,  to  testify  regarding  them. 

561.  Public  Records,  etc. — Proof  of  records,  documents, 
etc.,  in  charge  of  an  official  custodian  thereof  may  be 'made 
either  by  the  mere  production  of  the  records  or  by  a  copy 
thereof.  Copies  of  records  are  either,  (1)  exemplifications, 

(2)  office  copies,  copies  made  by  an  authorized  officer,  or, 

(3)  sworn  copies. 

An  exemplification  is  an  official  transcript  of  a  docu- 
ment from  public  records,  made  in  form  to  be  used  as  evi- 
dence, and  authenticated  as  a  true  copy,  either  under  the 
great  seal  of  the  State,  or  under  the  seal  of  the  particular 
court  where  the  record  remains. 

An  office  copy  is  a  copy  or  transcript  of  a  deed  of  record, 
or  any  filed  document,  made  by  the  officer  having  it  in  his 
custody,  or  under  his  sanction,  and  sealed  or  certified  by 
him,  and  is  admitted  upon  his  credit.  In  the  United 
States  an  officer  having  the  legal  custody  of  public  records 
is,  ex  officio,  competent  to  certify  copies  of  their  contents. 

Sworn  copies  are  examined  copies  which  have  been  com- 
pared with  the  original  or  with  an  official  record  thereof. 
Proof  of  an  examined  copy  is  made  by  producing  a  witness 
who  has  compared  the  examined  copy  with  the  original,  or 
with  what  the  officer  of  the  court,  or  any  other  person,  has 
read  as  the  contents  of  the  record.  But  it  should  appear 
that  the  record  was  found  in  its  proper  place  of  deposit,  or 
in  the  hands  of  the  proper  legal  custodian.1 

On  general  principles  of  law,  a  copy  of  a  paper  given  by 
a  public  officer,  whose  duty  it  is  to  keep  the  original,  ought 
to  be  received  in  evidence.2 

562.  Private  Writings. — Private  writings  intended  as 
evidence  must  be  produced  in  court  and  identified  by  a 
proper  witness  or  witnesses  before  being  accepted  as 
evidence. 

1  1  Greenl.,  Ev.,  Sec.  500-508. 

2  U.  S.  v.  Percheman,  7  Pet.  (32  U.  S.)  51. 


EVIDENCE  255 

In  court-martial  cases  where  the  writing  is  specifically 
referred  to  and  forms  part  of  the  charges,  its  contents,  so 
far  as  they  relate  to  the  charges,  should  be  embodied  in 
the  specifications,  which  should  correspond  in  terms  with 
the  document  itself. 

When  it  is  not  acknowledged  by  the  party  writing  it, 
or  who  signed  it,  its  authenticity  may  be  shown  by  a  sub- 
scribing witness,  if  any,  or,  if  it  is  over  thirty  years  old  and 
comes  from  its  proper  custodian,  it  is  said  to  prove  itself. 
In  other  cases  it  may  be  proved  by  witnesses  having 
knowledge  of  the  handwriting  of  the  party,  even  if  only 
having  seen  him  write  his  name  once,  or  having  seen  letters 
or  writings  purported  to  be  his,  which,  by  his  having 
acted  thereon  or  acquiesced  in,  the  witness  is  assured 
were  written  by  the  party,  or  which  he  has  admitted  to  be 
genuine. 

563.  The  handwriting  may  also  be  proved  by  a  com- 
parison made  by  the  court-martial  with  writings  already 
in  evidence  and  admitted  or  proved  to  be  genuine.  In 
this  comparison  experts  may  be  introduced  by  both 
parties  to  give  evidence,  in  their  opinion,  according  to 
their  belief,  and  after  examination,  as  to  the  genuineness 
of  the  handwriting.  But  the  writings  with  which  they 
are  compared  must  already  be  in  evidence  before  the 
court.  According  to  the  rule  of  the  common  law,  evi- 
dence of  handwriting  by  comparison  of  hands  is  inad- 
missible, and,  therefore,  cannot  be  admitted  on  a  trial  by 
court-martial,  except  where  the  writing,  acknowledged  .to 
be  genuine,  is  already  in  evidence  in  the  case,  or  the  dis- 
puted writing  is  an  ancient  document;  these  exceptions 
being  allowed  of-  necessity.1  If  a  paper  admitted  to  be 
in  the  handwriting  of  the  party,  or  to  have  been  sub- 
scribed by  him,  is  in  evidence  for  some  other  purpose  in 

1  Case  of  Cadet  Whittaker,  17  Op.  Atty.-Gen.  310-312. 


256  MILITARY  LAW 

the  cause,  the  signature  or  paper  in  question  may  be  com- 
pared with  it  by  the  jury.1 

564.  Under   the   common  law  rules,   therefore,   which 
govern  court-martial  trials,  any  witness,  having  proper 
knowledge  of  the  handwriting  of  a  party,  may  declare  his 
belief  as  to  its  genuineness;    or  the  writing  in  question 
may  be  compared  by  the  court,  with  aid  of  experts  if  de- 
sired, with  writings  already  in  evidence,  but  not  with 
others. 

565.  Alteration. — If,  on  production  of  an  instrument,  it 
appears  to  have  been  altered,  it  is  incumbent  on  the  party 
offering  it  in  evidence,  or  who  would  profit  by  the  change, 
to  explain  this  appearance.     If,  however,  the  alteration 
is  noted  in  the  attestation  as  having  been  made  before 
execution  of  the  instrument,  it  is  sufficiently  accounted  for. 
So  if  it  is  against  the  interest  of  the  party  deriving  title 
or  benefit  under  the  instrument,  it  is  admissible.     And, 
generally  speaking,  if  nothing  appears  to  the  contrary, 
the  alteration  will  be  presumed  to  be  contemporaneous 
with  the  execution  of  the  instrument.     But  if  any  ground 
of  suspicion  is  apparent  on  the  face  of  the  instrument,  the 
law  will  presume  nothing.     The  effect  of  a  material  alter- 
ation which  is  unexplained  is  to  invalidate  the  instru- 
ment.    Interlineations,  erasures,  or  other  alterations  made 
at  the  time  of  the  execution  of  the  instrument  may  be 
made  valid  by  the  insertion  of  a  clause  explaining  them, 
appearing  over  the  signatures  of  the  parties.     "Any  alter- 
ation which  causes  the  instrument  to  speak  a  language 
different  in  legal  effect  from  that  which  it  originally  spoke 
is  a  material  alteration." 

566.  Documents,    how    Produced. — The    production    of 
written  evidence  may  be  voluntary,  as  where  it  is  produced 
by  a  party  in  his  own  interest,  or  it  may  be  compulsory, 

1  Moore  v.  U.  S.,  91  U.  S.  270. 


EVIDENCE  257 

as  when  it  is  brought  before  the  court  in  obedience  to  its 
order  or  a  subpoena. 

When  the  document  is  in  the  possession  of  the  other 
party,  it  is  secured  in  evidence  by  notice  to  that  party  to 
produce  it  before  the  court,  and  if  he  fails  to  produce  it 
then  secondary  evidence  may  be  offered  as  to  its  contents. 
If  it  is  in  the  hands  of  a  third  party,  it  is  produced  through 
the  subpoena  duces  tecum  served  upon  him.  If  it  has  been 
lost  or  destroyed,  or  is  in  the  hands  of  a  person  outside 
the  jurisdiction  of  the  court,  secondary  evidence  of  its 
existence  and  contents  may  be  offered. 

567.  Identification. — When   a  document  is  introduced 
the  burden  of  identifying  it,  and  of  proving  that  it  is  the 
best  evidence  attainable,  rests  upon  the  party  in  whose 
behalf  it  is  produced.1 

568.  Secondary  Evidence. — Where  the  sources  of  pri- 
mary evidence  of  a  written  instrument  are  exhausted, 
secondary  evidence  is  admissible,2  and  this  may  be  oral 
as  well  as  documentary. 

569.  Oral  Evidence. — Oral  evidence  cannot  be  substir 
tuted  for  any  instrument  which  the  law  requires  to  be  in 
writing,  such  as  records,  public  documents,  or  writings 
mentioned  in  the  Statute  of  Frauds,3  or  in  any  case  where 

1  Davis'  El.  Law,  p.  80. 

2  1  Greenl.,  Ev.,  Sec.  582. 

3  The  "Statute  of  Frauds"  is  a  name  given  to  a  law  enacted  in 
England  in  1677  entitled  "An  Act  for  the  Prevention  of  Frauds  and 
Perjuries."     It  required  certain  acts,  agreements,  and  oral  contracts, 
which  were  legal  under  the  common  law,  to  be  thereafter  put  in  writing; 
thus  modifying  the  common  law  practice.     This  law  did  not  extend  to 
the  colonies,  and  was  therefore  not  in  force  as  a  part  of  the  legal  system 
adopted  by  them  when  they  became  States;  but  the  different  States  of 
the  United  States  have  since  enacted  statutes  of  this  character. 

For  the  United  States,  Congress  has  enacted  that  all  contracts  made 
on  behalf  of  the  government  by  the  Secretary  of  War,  the  Secretary  of 
the  Navy,  and  the  Secretary  of  the  Interior,  or  by  their  officers  under 
them  "shall  be  reduced  to  writing  and  signed  by  the  contracting 
parties,  with  their  names  at  the  end  thereof."  (Sec.  3744,  R.  S.) 

This  law  is  mandatory,  and  extends  not  only  to  quartermasters  and 
other  ordinary  purchasing  agents,  but  to  all  officers  in  the  War,  Navy, 
and  Interior  departments,  and  embraces  every  contract  made  by 


258  MILITARY  LAW 

the  law  requires  that  evidence  of  the  transaction  be  in 
writing.  No  other  proof  can  be  substituted  for  that,  so 
long  as  the  writing  exists  and  it  is  within  the  power  of  the 
party  to  produce  it.1 

570.  Inscriptions. — Inscriptions  on  walls,  fixed  tablets, 
mural  monuments,  gravestones,  surveyor's  marks,  bound- 
ary trees,  etc.,  which  cannot  be  produced  in  court,  may  be 
proved  by  secondary  or  oral  evidence. 

571.  Public  Officers. — It  is  unnecessary  to  prove  the 
written  appointments  of  public  officers;    the  fact  being 
proved  that  they  have  acted  as  such  authorizes  the  pre- 
sumption that  they  have  been  duly  appointed  to  office 
until  the  contrary  appears. 

572.  Voluminous  Facts,  etc. — Where  evidence  is  the  re- 
sult of  voluminous  facts,  or  of  the  inspection  of  many 
books  and  papers,  which  could  not  be  conveniently  ex- 
amined in  court,  secondary  evidence  thereof  may  be  re- 
ceived. 

DIRECT   AND   INDIRECT   EVIDENCE 

573.  Direct  Evidence. — Direct  evidence  is  primary  in 
character  and  the  best  evidence.     It  always  bears  directly 
upon  the  point  in  issue. 

In  every  case  the  fact  in  issue  is  to  be  proved,  either  by 
the  evidence  of  those  who  speak  from  their  own  actual  or 
personal  knowledge  of  its  existence,  or  it  is  to  be  inferred 
from  other  facts  satisfactorily  established.  In  the  former 
case  the  evidence  of  the  fact  itself  is  direct;  in  the  latter 
case  the  evidence  as  to  the  facts  testified  to  is  direct,  but 
the  connection  with  the  fact  to  be  established  is  indirect, 
and  the  judgment  formed  as  to  the  fact  in  question  is  de- 
rived from  the  indirect  facts  proved. 

them.  (Lindley's  Case,  4  Ct.  Cl.  360;  Danold's  Case,  5  Ct.  Cl.  65; 
Clark  v.  U.  S.,  95  U.  S.  539;  South  Boston  Iron  Co.  v.  U.  S.,  118  U.  S. 
37.) 

»  1  Greenl.,  Ev.,  Sec.  84-87. 


EVIDENCE  259 

574.  Indirect  Evidence. — It  is  not  necessary  that  the 
evidence  should  always  be  direct;  any  evidence  that  tends 
to  prove  the  issue,  or  to  constitute  a  link  in  the  chain  of 
proof,  may  be  admitted,  and  under  this  limitation  indirect 
evidence  is  admissible. 

575.  Collateral  Facts. — Collateral  facts  are,  as  a  rule,  in- 
admissible, but  exceptions  have  been  made  in  which  the 
knowledge  or  interest  of  the  party  was  a  material  fact 
upon  which. the  evidence,  though  apparently  collateral, 
had  a  direct  bearing  and  was  therefore  admitted.1 

In  the  trial  of  a  soldier  for  desertion  collateral  facts  may 
be  proved  to  show  his  intent  which  is  a  necessary  element 
of  the  crime. 

576.  Circumstantial  Evidence. — Evidence  which  is  not 
direct   and    positive   is   indirect   or   circumstantial.     In 
criminal  cases  circumstantial  evidence  is  often  the  most 
convincing,  but  the  circumstances  established  in  evidence 
must  be  such  as  lead  to  a  direct  conclusion  of  the  fact  to  be 
derived  therefrom,  as  established  beyond  reasonable  doubt ; 
the  truth  of  the  fact  in  question  and  the  conclusion  arrived 
at  must  be  established  by  reasonable  application  of  the 
evidence. 

Circumstantial  evidence  may  also  be  uncertain,  or  that 
from  which  the  conclusion  does  not  necessarily  follow, 
but  is  probable  only,  and  is  obtained  by  a  process  of  rea- 
soning; but,  in  criminal  cases,  the  consequence  of  a  wrong 
conclusion  may  be  irremediable,  and  the  court  must  be 
satisfied  of  a  right  conclusion  beyond  any  reasonable  doubt 
thereof. 

577.  Hearsay. — Hearsay  evidence  is  the  evidence  given 
by  a  witness  who  relates,  not  what  he  knows  or  has  ob- 
served personally,  but  what  others  have  told  him,  or  what 
he  has  heard  said  by  others,  and  is  admissible  only  in  ex- 
ceptional cases.    The  objections  to  its  admissibility  are 

1  1  Greenl.,  Ev.,  Sec.  52,  53. 


260  MILITARY  LAW 

(1)  that  it  is  secondary,  and  the  law  requires  primary 
evidence;  (2)  that  the  real  witness  is  not  testifying  in 
court,  under  the  sanction  of  an  oath;  and  (3)  that  the 
opposite  party,  and  especially  the  defendant  in  criminal 
cases,  has  no  opportunity  to  be  confronted  with,  or  to 
cross-examine,  the  witnesses  against  him.1 

Hearsay  evidence  is  incompetent  to  establish  any 
specific  fact  which  in  its  nature  is  susceptible  of  being 
proved  by  witnesses  who  speak  from  their  own  knowledge.2 

578.  Exceptions. — The  rule  as  to  the  inadmissibility  of 
hearsay  testimony  prevails  unless  such  testimony  consti- 
tutes (a)  a  part  of  the  res  gestce,  or  (b)  is  admissible  as 
dying  declarations,  or  (c)  as  declarations  made  by  author- 
ity of  the  defendant,  or  (d)  as  evidence  given  in  a  former 
proceeding.3 

The  above  exceptions,  which  are  the  only  ones  to  the 
general  rule  of  inadmissibility  of  hearsay  evidence,  are 
allowed  only  on  the  ground  of  the  absence  of  better  evi- 
dence, and  from  the  nature  and  necessity  of  the  case.4 

579.  (a)   Res  Gestce. — The  things  done   in   connection 
with  a  transaction,  the  facts  of  a  transaction,  are  called 
the  res  gestce.     They  are   the  circumstances,  facts,  and 
declarations  which  grow  out  of  the  main  fact,  are  contem- 
poraneous with  it,  and  serve  to  illustrate  its  character. 

Written  and  verbal  declarations  are  often  admitted  as 
constituting  a  part  of  the  res  gestce;  usually  when  accom- 
panying some  act  the  nature,  motive,  or  object  of  which 
is  the  subject  of  inquiry.  When  words  or  writings  accom- 
pany an  act,  or  where  they  indicate  the  state  of  a  person's 
bodily  sufferings  or  feelings,  they  derive  their  credit  from 
the  surrounding  circumstances  and  not  from  the  bare 
expressions  of  the  declarant.5 

1  Davis'  El.  Law,  p.  71. 

2  Hopt  v.  Utah,  110  U.  S.  574. 

3  Clark's  Cr.  Proc.,  p.  523. 

4  See  1  Greenl.  Ev.,  Sec.  127. 
8  Maxwell's  Cr.  Proc.,  p.  218. 


EVIDENCE  261 

580.  The  principal  points  to  be  considered  upon  the 
question  of  admissibility  of  such  evidence  are  as  to  whether 
the  circumstances  and  declarations  offered  in  proof  were 
contemporaneous  with  the  main  fact  under  consideration 
and  whether  they  were  so  connected  with  it  as  to  illustrate 
its  character.1 

Facts  which  are  not  themselves  in  issue,  but  which  are 
part  of  the  same  transaction  as  the  facts  in  issue,  being 
part  of  the  res  gestce,  are  admitted  because  they  explain 
or  qualify  the  facts  in  issue. 

581.  Conspiracy. — When  the  foundation  has  been  laid 
by  proof  sufficient  in  the  opinion  of  the  court  to  establish 
prima  facie  the  fact  of  conspiracy  between  the  parties,  or 
facts  proper  to  be  received  as  tending  to  establish  such 
fact,  the  acts  and  declarations  of  one  of  a  company  of  con- 
spirators, in  regard  to  the  common  design  as  affecting  his 
fellows,  may  be  received.2    But  acts  or  declarations  of 
one  conspirator,  made  after  the  conspiracy  is  ended,  or 
not  in  furtherance  of  the  conspiracy,  are  not  admissible 
in  evidence  against  the  other  conspirators.3 

582.  (b)  Dying  Declarations. — In  cases  of  homicide  where 
the  death  of  the  deceased  is  the  subject  of  the  charge,  and 
the  circumstances  of  the  death  are  the  subject  of  dying 
declarations,  such  declarations  may  be  admitted.     "The 
persons  whose  declarations  are  thus  admitted  are  con- 
sidered as  standing  in  the  same  situation  as  if  they  were 
sworn;    the  danger  of  impending  death  being  equivalent 
to  the  sanction  of  an  oath."     If  the  declarant,  therefore, 
would  be  incompetent,  if  living,  to  testify,  by  reason  of 
infamy,  or  other  legal  cause,  his  dying  declarations  are 
inadmissible.4 

The  declarations  must,  moreover,  be  made  under  the 

1 1  Greenl.  Ev.,  Sec.  108. 

2  Id.,  Sec.  111. 

3  Logan  v.  U.  S.,  144  U.  S.  263. 
4 1  Greenl.  Ev.,  Sec.  156,  157. 


262  MILITARY  LAW 

sense  of  impending  death,  and  declarations  of  the  deceased 
are  admissible  only  as  to  those  things  to  which  he  would 
have  been  competent  to  testify  if  sworn  in  the  case.1 

The  court-martial  determines  the  question  of  the  com- 
petency of  the  witness,  and  the  weight  to  be  given  to  his 
declarations. 

583.  (c)  Declarations  Made  by  the  Defendant  or  by  His 
Authority. — Declarations  may  be  either  admissions  or  con- 
fessions ;  admissions  pertain  to  civil  cases,  while  confessions 
are  statements  or  declarations  made  by  the  accused  in 
criminal  cases.     Declarations  made  by  the  defendant,  or 
by  a  third  party  by  his   authority,  if   relevant,   are  ad- 
missible against  him,  but  are  not  admissible  in  his  favor.2 

584.  Confessions. — "  A  confession  is  an  admission  made 
at  any  time  by  a  person  charged  with  crime,  stating,  or 
suggesting  the  inference,  that  he  committed  the  crime,  and 
is  admissible  against  him,  if  voluntary." 

It  is  not  voluntary  "if  it  was  caused  by  any  inducement, 
threat,  or  promise  proceeding  from  a  person  in  authority, 
and  having  reference  to  the  charge  against  the  accused, 
whether  addressed  to  him  directly  or  brought  to  his  knowl- 
edge indirectly,  or  if  such  inducement,  threat,  or  promise 
gave  the  accused  any  reasonable  grounds  for  supposing 
that  by  making  a  confession  he  would  gain  some  advan- 
tage or  avoid  some  evil  in  reference  to  the  proceedings 
against  him." 

"A  confession  is  not  involuntary  merely  because  it 
appears  to  have  been  caused  by  the  exhortations  of  a  per- 
son in  authority  to  make  it  as  a  matter  of  religious  duty, 
or  by  an  inducement  collateral  to  the  proceeding,  or  by 
inducement  held  out  by  a  person  not  in  authority."  3 

But  the  evidence  of  a  verbal  confession  of  guilt  should 
be  received  with  great  caution  because  of  the  danger  of 
mistake,  through  the  misapprehension  of  the  witnesses,  the 

1  1  Greenl.  Ev.,  Sec.  159.     2  Clark's  Cr.  Proc.,  p.  527.    3  Id.,  p.  528. 


EVIDENCE  263 

misuse  of  words,  the  failure  of  the  party  to  express  his 
own  meaning,  the  infirmity  of  memory,  and  the  condition 
of  mind  of  the  accused.1  The  official  character  of  the 
person  to  whom  the  confession  is  made  does  not  affect  its 
admissibility,  provided  no  inducements  were  employed; 
but  confessions  made  by  private  soldiers  to  officers  or  non- 
commissioned officers,  though  not  shown  to  have  been 
made  under  the  influence  of  promise  or  threat,  should  yet, 
in  view  of  the  military  relations  of  the  parties,  be  received 
with  caution.2 

585.  A  confession,  if  fully  and  voluntarily  made,  is  evi- 
dence of  the  most  satisfactory  character.     While   from 
the  very  nature  of  such  evidence  it  must  be  subjected  to 
careful  scrutiny  and  received  with  great  caution,  a  deliber- 
ate and  voluntary  confession  of  guilt  is  among  the  most 
effectual  proofs  in  the  law,  and  constitutes  the  strongest 
evidence  against  the  party  making  it  that  can  be  given 
of  the  facts  stated  in  the  confession.3 

But  the  presumption  on  which  weight  to  such  evidence 
is  based,  namely,  that  an  innocent  person  will  not  imperil 
his  safety  or  interests  by  an  untrue  statement,  ceases 
when  the  confession  appears  to  have  been  made  in  conse- 
quence of  inducements  of  a  temporal  nature,  held  out  by 
one  in  authority,  or  because  of  a  threat  or  promise  by,  or 
in  the  presence  of,  such  person,  which,  operating  upon 
the  fears  or  hopes  of  the  accused  in  reference  to  the  charge, 
deprives  him  of  that  freedom  of  will  or  self-control  essential 
to  make  his  confession  voluntary,  within  the  meaning  of 
the  law.4 

586.  The  true  test  of  the  admissibility  in  evidence  of  a 
confession  of  a  person  on  trial  for  the  commission  of  a 

1  1  Greenl.  Ev.,  Sec.  214. 

2  Dig.  Op.  J.  A.  G.  1299,  note  1. 

3 1  Greenl.  Ev.,  Sec.  215;  Starkie,  Ev.,  p.  73;  Hopt  v.  Utah,  110 
U.  S.  584,  585. 

4  Hopt  v.Utah,  110U.  S.  585. 


264  MILITARY  LAW 

crime  js  that  it  was  made  freely,  voluntarily,  and  without 
compulsion  or  inducement.1 

The  most  common  form  of  confession  is  the  plea  of 
guilty  in  open  court.  This  does  not  exclude  the  admis- 
sion of  evidence  by  courts-martial,  and  the  testimony  of 
witnesses  is  usually  taken  in  such  cases  where  the  character 
of  the  offense  is  such  as  to  make  the  degree  of  punishment 
to  be  awarded  a  question  for  the  court  to  determine. 

587.  Treason. — The    Constitution    provides    that    "no 
person  shall  be  convicted  of  treason  unless  on  the  testi- 
mony of  two  witnesses  to  the  same  overt  act,  or  on  con- 
fession in  open  court."2    But  it  has  been  held  that  this 
restriction  does  not  apply  to  'preliminary  hearings  and 
commitment 3  or  to  show  intent.4    The  provisions  of  the 
Constitution  are  conditions  precedent  for  the  establish- 
ment of  the  prisoner's  guilt,  and  until  the  overt  act  is 
proven  by  two  witnesses,  or  until  there  is  confession  made 
in   open   court,    corroborative   or   confirmatory  evidence 
cannot  be  introduced.     But  after  the  provisions  of  the 
Constitution  are  satisfied,  corroborative  evidence,  such  as 
a  confession  not  made  in  open  court,  is  admissible.4 

588.  (d)  Evidence  Given  in  a  Former  Proceeding. — Evi- 
dence given  in  a  former  proceeding  is  admissible  for  the 
purpose  of  proving  the  matter  stated  in  a  subsequent  pro' 
ceeding  or  in  a  later  stage  of  the  same  proceeding,  under 
the  following  circumstances,  viz.: 

(a)  When  the  witness  is  dead,  (6)  or  insane,  (c)  or  so  ill 
that  he  will  probably  never  be  able  to  travel,  or  (d)  when 
he  is  kept  out  of  the  way  by  the  adverse  party :  Provided, 
That  the  person  against  whom  the  evidence  is  to  be  given 
had  the  right  and  opportunity  to  cross-examine  the  wit- 

1  Wilson  v.  U.  S.,  162  U.  S.  613. 

2  Art.  3,  Sec.  3,  Cl.   1. 

3  U.  S.  v.  Greiner,  4  Phila.  396;   Gould  and  Tucker,  Notes,  Revised 
Statutes,  Vol.  1,  p.  999. 

4  Am.  and  Eng.  Enc.  of  Law,  2d  Ed.,  Vol.  28,  p.  468. 


EVIDENCE  265 

ness  in  the  former  proceeding;  that  the  questions  in  issue 
were  substantially  the  same  in  the  first  as  in  the  second 
proceeding;  and  that  the  same  person  is  accused  upon 
the  same  facts.1 

589.  Opinion  Evidence. — The  opinion  of  a  person  that 
a  fact  in  issue  or  relevant  to  the  issue  does  or  does  not 
exist  is  admissible  only  in  exceptional  cases.  The  opinions 
of  witnesses  are,  in  general,  not  evidence.  Yet,  on  certain 
classes  of  subjects,  any  competent  witness  may  express 
his  opinion  or  belief.  Thus  the  testimony  of  a  witness  as 
to  his  belief  in  the  identity  of  a  person,  or  as  to  his  hand- 
writing, if  he  has  knowledge  of  it,  may  be  given. 

"  Any  intelligent  witness'may  testify  as  to  opinions  which 
are  in  themselves  conclusions  drawn  from  numerous  facts 
within  the  daily  observation  and  experience  of  all  intelligent 
persons.  Such  relate  to  the  appearance  or  demeanor  of  a 
person;  his  sanity,  sobriety,  identity,  or  his  resemblance 
to  another;  his  physical  condition,  whether  sick  or  well; 
his  condition  as  regards  emotion  or  passion,  as  to  anger, 
hope  or  fear,  joy  or  sorrow,  excitement  or  coolness,  and 
the  like.  These  are  matters  of  every-day  occurrence  as 
to  which  all  thoughtful  persons  are  competent  to  testify 
in  a  proper  case."  2 

"The  instantaneous  conclusions  of  the  mind  as  to  the 
appearance,  condition,  or  mental  or  physical  state  of  per- 
sons, animals,  and  things,  derived  from  observation  of  a 
variety  of  facts  presented  to  the  senses  at  one  and  the  same 
time,  are,  legally  speaking,  matters  of  fact,  and  are  admis- 
sible in  evidence."  3 

"The  statement  of  a  non-professional  witness,  as  to  the 
sanity  or  insanity,  at  a  particular  time,  of  an  individual, 
whose  appearance,  manner,  habits,  and  conduct  came 
under  his  personal  observation,  is  not  the  expression  of 

1  Clark's  Grim.  Proc.,  p  532. 

2  Davis'  Military  Law,  pp.  261-2. 

3  McKelvey  on  Ev.,  Sec.  124. 


266  MILITARY  LAW 

mere  opinion.  In  form,  it  is  an  opinion,  because  it  ex- 
presses an  inference  or  conclusion.  But  in  a  substantial 
sense,  and  for  every  purpose  essential  to  a  safe  conclusion, 
the  mental  condition  of  an  individual,  as  sane  or  insane, 
is  a  fact,  and  the  expressed  opinion  of  one  who  has  had 
adequate  opportunities  to  observe  his  conduct  and  appear- 
ance is  but  the  statement  of  a  fact."  l 

590.  Experts. — The  opinion  of  experts  in  any  science, 
art,    trade,   or   profession  in  which   they  have  attained 
special  proficiency  may,  at  the  discretion  of  the  court, 
and  under  its  direction,  be  given  in  evidence.2     Before 
an  alleged  expert,  however,  is  allowed  to  give  his  opinion, 
the  court  must  be  satisfied  that  his  skill  in  the  matter  upon 
which  his  opinion  is  to  be  given  in  evidence  is  sufficient 
to  entitle  him  to  be  considered  an  expert.     The  expert 
not  knowing  anything  of  the  particular  case,  facts  may  be 
stated  hypothetically  and  he  be  asked  to  state  his  opinion 
assuming  those  facts  to  be  true.     Facts  not   otherwise 
relevant  are  admissible  if  they  support  or  if  they  are  in- 
consistent with  the  opinions  given  by  experts.3 

The  employment  of  experts  before  a  court-martial  is 
within  the  legal  and  proper  discretion  of  the  Secretary  of 
War.4 

591.  Character. — Evidence  of  character  is  admissible 
to  show  (a)  that  the  accused  bears  a  good  character  as 
tending  to  prove  that  it  is  not  probable  that  he  would 
commit  the  crime  he  is  charged  with,  and  to  strengthen 
the  presumption  of  innocence;     (b)   in  prosecutions   for 
homicide  the  character  of  the  deceased  as  a  violent  and 
dangerous  man  may  be  shown,  on  the  question  as   to 
whether  the  accused  acted  in  self-defense. 

But  the  prosecution  cannot  show  that  the  accused  has  a 

1  Conn.  Mutual  Life  Ins.  Co.  v.  Lathrop,  111  U.  S.  620= 

2  Davis'  Military  Law,  p.  262. 

3  Clark's  Cr.  Proc.,  p.  536;   see  Sec.  234,  supra. 

4  In  re  Wm.  Smith,  24  Ct.  Cl.  209. 


EVIDENCE  267 

bad  character,  unless  his  character  itself  is  a  fact  in  issue, 
or  unless  evidence  has  been  given  that  he  has  a  good  char- 
acter, in  which  case  evidence  that  he  has  a  bad  character 
is  admissible.1 

592.  In  trials  before  military  courts,  evidence  of  the 
good  character,  record,  and  services  of  the  accused  as  an 
officer  or  soldier  may  be  introduced  in  all  cases  where  the 
sentence  is  mandatory  as  well  as  those  where  it  is  discre- 
tionary, not  only  for  the  purpose  of  influencing  favorably 
the  judgment  of  the  court-martial  but  in  order  that  it  may 
be  a  basis  of  a  recommendation  to  clemency  by  members 
of  the  court,  or  induce  favorable  action  by  the  review- 
ing authority  whose  approval  is  necessary  to  the  execution 
of  the  sentence.2     When  such  evidence  is  introduced  by 
the  accused  the  prosecution  may  then  produce  counter- 
testimony. 

JUDICIAL   NOTICE  3 

593.  Courts  will  recognize  the  existence  and  truth  of 
certain  facts  bearing  upon  the  matter  in  issue  before  them, 
of  their  own  motion  and  without  requiring  the  production 
of  evidence;    such  acceptance  of  these  facts  is  known  as 
" taking  judicial  notice"  of  them. 

These  facts  are  accepted  either  because  the  law  makes 
it  the  duty  of  the  court  to  know  them,  or  because  they 
are  recognized  to  be  of  such  universal  notoriety  as  to 
leave  no  room  for  dispute  about  them. 

594.  The  first  class  embraces: 

a.  All  the  public  laws  by  which  the  court  is  bound  to  be 
controlled  in  rendering  its  decisions.4 

1  Clark's  Cr.  Proc.,  pp.  536-537. 

2  Davis'  Military  Law,  p.  266. 

3  See  Reynolds  on  Evidence,  2d  Ed.,  pp.  64-73. 

4  They  include  the  Constitution,  public  statutes,  and  treaties  of  the 
United  States;  the  Constitution  and  public  laws  of  the  State  in  which 
the  court  is  sitting;   the  law  of  nations;    law  merchant;   the  common 
law  and  its  statutory  modifications,  so  far  as  they  constitute  a  part 


268  MILITARY  LAW 

b.  Matters  of  public  interest  which,  being  recognized, 
established,  or  determined  by  the  law  of  the  land,  must  be 
considered  to  be  within  the  knowledge  of  all  persons,  and 
especially  those  holding  public  position  under  the  govern- 
ment, and  thereby  constituting  a  part  of  it.1 

of  the  law  of  the  land;  the  rules  and  regulations  prescribed  by  depart- 
ments of  government  (Caha  v.  U.  S.,  152  U.  S.  212).  They  do  not, 
however,  take  judicial  notice  of  the  laws  of  a  foreign  country,  nor  of 
the  laws  of  another  State;  nor  do  courts  judicially  notice  private  acts 
of  legislation,  nor  the  various  orders  issued  by  a  military  commander 
in  the  exercise  of  the  authority  conferred  upon  him  (Burke  v.  Milten- 
berger,  19  Wall.  [86  U.  S.]  519),  though  they  may  take  notice  of  his 
official  character.  Foreign  laws  must  be  proved  like  other  facts,  veri- 
fied by  oath,  or  by  equally  high  authority.  The  certificate  of  a  consul 
of  the  United  States,  under  his  seal,  is  not  sufficient.  (Church  v. 
Hubbart,  2  Or.  [6  U.  S.]  187;  Dainese  v.  Hale,  91  U.  S.  13;  Lloyd  v. 
Matthews,  155  U.  S.  222.) 

1  In  the  United  States  this  class  has  been  held  to  include: 

1.  The  existence  and  titles  of  all  sovereign  powers  of  the  civilized 
world,  recognized  by  the  government  of  the  United  States,  their  re- 
spective flags  and  seals  of  state;  the  public  acts  and  proclamations  and 
the  public  authorized  agents  of  such  powers  in  carrying  their  treaties 
with  the  United  States  into  effect. 

2.  Foreign  admiralty  and  maritime  courts,  notaries,  and  their  re- 
spective seals. 

3.  The  sittings  of  Congress  'and  of  the  Legislature  of  the  State  or 
Territory  where  the  court  is  held,  their  established  and  usual  mode  of 
procedure,  the  privileges  of  members,  and,  in  some  cases,  the  transac- 
tions recorded  on  their  journals. 

4.  The  accession  of  the  Chief  Executive  of  the  Nation,  and  of  the 
State  or  Territory  in  which  the  court  is  held;  his  powers  and  privileges, 
and  his  signature;    the  heads  of  departments  and  principal  officers  of 
state;    the  persons  at  the  head  of  or  presiding  over  bureaus  of  the 
departments  of  government;   the  public  seals;   the  election  or  resigna- 
tion of  a  Senator  of  the  United  States;  the  appointment  of  a  cabinet  or 
foreign  ministers;   the  existence  of  all  courts  of  the  United  States  and 
all  courts  of  general  jurisdiction  in  the  State  or  Territory  where  the 
court  is  held,  and  the  extent  of  their  jurisdiction;   also  the  existence, 
jurisdiction,  and  practice  of  its  inferior  courts  in  so  far  as  established 
by  law;   the  judges  and  seals  of  all  such  courts  and  their  terms  so  far 
as  regulated  by  public  law,  but  not  their  rules  of  court;    the  United 
States  Marshals,  Sheriffs,  United  States  and  State  District  Attorneys, 
and  Clerks  of  Court,  and  the  genuineness  of  their  respective  signatures, 
but  not  those  of  their  deputies. 

5.  Public  proclamations  of  war  and  peace  and  of  days  of  special  pub- 
lic feasts  and  thanksgiving;   stated  days  of  general  political  elections; 
the  legal  coinage,  weights  and  measures  of  the  country;    the  territorial 
extent  of  the  jurisdiction  and  sovereignty  exercised  de  facto  by  the 
United  States  and  the  State  in  which  the  court  sits,  and  the  local 
political  divisions  of  the  State  into  counties,  etc.,  and  their  relative 
positions,  but  not  precise  boundaries  further  than  described  in  public 
statutes;    the  public  surveys  and  legal  subdivisions  under  the  public 


EVIDENCE  269 

c.  Matters  peculiarly  within  the  knowledge  of  the  par- 
ticular court,  as  its  records,  its  officers  and  their  deputies, 
its  attorneys,  and  the  signatures  of  such  officers,  deputies, 
and  attorneys,  in  all  their  official  or  professional  acts. 

d.  Matters  which  the  courts  are  specially  directed  by 
statute  to  notice  judicially. 

e.  Matters  which  take  place  in  the  actual  presence  of  the 
court. 

595.  The  second  class  of  facts  judicially  noticed  em- 
braces all  matters  so  notorious  as  to  be  fairly  considered 
to  be  within  the  common  knowledge  or  experience  of  all 
persons  of  ordinary  intelligence  and  education.1 

596.  If  the  court  is  uncertain  as  to  any  fact  which  it  is 

law;  and  the  courts  of  the  United  States  take  special  notice  of  the 
ports  and  waters  of  the  United  States  where  the  tide  ebbs  and  flows, 
arid  of  the  boundaries  of  the  several  States  and  judicial  districts. 

1  This  class  has  been  held  to  include : 

a.  The  general  geographical  features  of  the  country  or  State,  the 
existence  and  location  of  its  principal  mountains,  rivers,  and  cities,  and 
also  the  geographical  position  and  distances  of  foreign  countries  and 
cities,  so  far  as  they  are  matters  of  universal  notoriety,  and  of  geographi- 
cal facts.  (U.  S.  v.  La  Vengeance,  3  Dall.  [3  U.  S.]  297.) 

6.  Matters  of  public  history  affecting  the  whole  people,  and  public 
matters  affecting  the  national  government  or  that  of  the  State,  district, 
or  county  where  the  court  is  held;  the  existence  of  wars,  the  closing 
of  courts,  and  the  substitution  of  military  authority;  and  the  cessation 
of  war.  (Wharton,  Ev.,  Vol.  1,  Sec.  338.) 

c.  Things  which  have  happened  in  the  ordinary  course  of  nature,  as 
the  ordinary  limitation  of  human  life  as  to  age,  the  course  of  time  and 
the  heavenly  bodies,  the  mutations  of  the  seasons,  and  their  relation 
to  the  maturity  of  crops. 

d.  The  ordinary  public  feasts  and  festivals;    the  coincidence  of  the 
days  of  the  week  with  the  days  of  the  month. 

e.  The  meaning  of  words  in  the  vernacular  language,  but  not  of 
catchwords,  technical,  local,  or  slang  expressions. 

/.  Ordinary  abbreviations  universally  understood,  such  as  abbrevia- 
tions of  Christian  names  and  the  like,  but  not  those  in  any  degree 
doubtful  or  difficult  of  interpretation. 

g.  The  character  of  the  general  circulating  medium,  currency,  etc., 
of  the  country  and  the  public  language  in  reference  to  it.  (Reynolds 
on  Evidence,  pp.  66-74.) 

There  is  no  rule  of  law,  or  practice,  requiring  civil  courts  to  take 
notice  of  orders  issued  by  a  military  commander  in  the  exercise  of  the 
authority  conferred  upon  him,  though  the  fact  of  military  occupation 
of  territory  might  be  so  noticed.  (^Burke  v.  Miltenberger,  19  Wall. 
[86  U.  S.]  519,  526.) 


270  MILITARY  LAW 

called  upon  to  notice  judicially  it  may  refer  to  any  per- 
son, or  to  any  document  or  book  of  reference,  to  satisfy 
itself  with  regard  thereto,  or  it  may  refuse  to  take  judicial 
notice  of  the  fact,  unless  and  until  the  party  calling  upon 
it  to  do  so  shall  produce  such  document  or  book  of  reference. 

597.  The  court  will  also  take  notice  of  facts  expressly 
admitted  by  the  parties  either  in  the  pleadings  or  at  the 
hearing  of  the  case.     But  in  prosecution  for  murder,  courts 
will  not   ordinarily  permit  a  conviction  upon  the  mere 
confession  of  the  prisoner,   without   some  corroborative, 
evidence,  either  direct  or  circumstantial,  of   the  actual 
commission  of  the  crime.1    The  corpus  delicti,2  the  fact 
that  the  crime  has  actually  been  committed,  must  be  shown 
before  there  can  be  conviction,  even  after  confession. 

PRESUMPTIONS 

598.  "A  ' presumption '  is  a  rule  of  law  that  courts  or 
juries  shall  or  may  draw  a  particular  inference  from  a  par- 
ticular fact  or  from  particular  evidence,  unless  and  until 
the  truth  of  such  inference  is  disproved."  3 

Presumptions  are  of  two  classes:  Presumptions  of 
Law  and  Presumptions  of  Fact. 

Presumptions  of  Law. — A  " presumption  of  law"  means 
"a  rule  of  law  that  courts  and  juries  shall  draw  a  particular 
inference  from  a  particular  circumstance."  4  They  con- 
sist of  those  rules  which,  in  certain  cases,  either  forbid  or 
dispense  with  any  ulterior  inquiry.5 

1  Reynolds  on  Evidence,  p.  74. 

2  By  corpus  delicti  is  meant  the  essential  substance,  in  law,  of  the 
offense  charged.     It  consists  of  two  things:  first,  the  existence  of  the 
act  or  result  forming  the  basis  of  a  criminal  charge;  and,  secondly,  the 
existence  of  a  criminal  agency  as  the  cause  of  this  act  or  result.     For 
example,  in  the  case  of  a  felonious  homicide,  the  death  of  the  person 
killed  must  be  proved,  and  also  the  fact  of  the  existence  of  a  criminal 
agency  as  the  cause  of  the  death.     (Am,  and  Eng.  Encyc.  of  Law,  Vol. 
7,  p.  861.) 

3  Lawson  on  Presumptive  Ev.,  p.  555;   Stephen,  Dig.  Ev.,  p.  2. 

4  Lawson  on  Presumptive  Ev.,  p.  555. 
6 1  Greenl.  Ev,,  Sec.  14. 


EVIDENCE  271 

Presumptions  of  law  are  classed  as  either  " conclusive'' 
or  " disputable." 

599.  Conclusive  Presumptions. — Conclusive,  or  abso- 
lute, presumptions  of  law  are  rules  determining  the  quantity 
of  evidence  requisite  for  the  support  of  any  particular 
averment,  which  is  not  permitted  to  be  overcome  by  any 
proof  that  the  fact  is  otherwise,  and,  therefore,  all  corrobo- 
rating evidence  is  dispensed  with  and  all  opposing  evidence 
is  forbidden.1 

These  rules  are  sometimes  declared  in  statutes,  or  through 
the  medium  of  judicial  tribunals,  as  being  the  common 
law  of  the  land. 

600.  Among  these  presumptions  of  law  are  the  follow- 
ing: 

That  a  sane  man  contemplates  the  natural  and  probable 
consequences  of  his  own  acts;  if  a  man  kills  another  with  a 
deadly  weapon  it  is  a  presumption  of  law  that  he  intended 
his  death;  in  favor  of  judicial  proceedings  and  the  correct- 
ness of  the  records  of  a  court  of  justice,  and  that  ancient 
documents,  deeds  and  wills  more  than  thirty  years  old, 
and  unblemished  by  alterations,  prove  themselves;  that 
infants  under  seven  years  of  age  are  incapable  of  com- 
mitting a  crime;  and  that  a  wife  acting  in  company  with 
her  husband  in  the  commission  of  a  felony,  other  than 
murder,  treason,  or  robbery,  acts  under  his  coercion,  and 
consequently  without  guilty  intent.  But  this  last  pre- 
sumption has  been  weakened  by  recent  decisions,2  and 
is  now  classed  by  some  writers  among  the  disputable 
presumptions. 

60 1.  Estoppel. — Estoppel  may  be  classed  in  this  rank 
of  presumptions.3     Estoppel  is  a  preclusion  in  law,  which 
prevents  a  man  from  alleging  or  denying  a  fact  in  conse- 
quence of  his  own  previous  act,  allegation  or  denial  to  the 

1  1  Greenl.  Ev.,  Sec.  15. 

2  Id.,  Sec.  28,  noted. 
B  Id.,  Sec.  22. 


272  MILITARY  LAW 

contrary.1  A  man  is  said  to  be  estopped  when  he  has  done 
some  act  which  the  policy  of  the  law  will  not  permit  him 
to  gainsay  or  deny;  it  forbids  his  questioning  the  legality 
of  an  act  which  he  has  sanctioned  either  by  words  or  con- 
duct to  the  prejudice  of  those  who  have  given  faith  to  his 
words  or  to  the  fair  inference  to  be  drawn  from  his  conduct. 
The  words  or  conduct  must  have  misled  the  other  party, 
and  the  element  of  fraud  is  essential  in  order  to  operate 
as  an  estoppel.  There  may  be  an  estoppel  by  deed, 
as  in  the  case  of  a  sealed  instrument;  or  of  record, 
as  when  it  appears  in  the  pleadings  in  an  action  at 
law.2 

602.  Disputable  Presumptions. — Disputable  presump- 
tions are  those  which  establish  a  prima  facie  case,  but 
which  may  be  overcome  by  opposing  proof. 

Of  this  class  are  the  following :  the  presumption  of  inno- 
cence in  criminal  cases;  that  men  follow  the  usual  con- 
duct in  the  course  of  trade;  that  solemn  instruments  have 
been  duly  executed;  in  favor  of  the  regularity  of  the 
conduct  of  business  in  a  public  office;  in  favor  of  the 
permanency  and  continuance  of  the  existence  of  persons, 
personal  relations,  or  a  state  of  things  once  established 
by  proof,  and  against  change;  in  favor  of  the  sanity  of  a 
person;  that  an  infant  between  seven  and  fourteen  years 
of  age  is  incapable  of  committing  crime,  in  such  case  the 
burden  of  proof  to  show  capacity  lies  with  the  prosecution; 
that  the  possession  of  personal  property  is  prima  facie 
evidence  of  ownership;  that  a  cliild  born  during  wedlock 
is  legitimate;  in  favor  of  regularity  and  legality.  Public 
officers  are  presumed  to  have  complied  with  the  laws 
governing  them  in  the  performance  of  their  duties;  3  a  duly 
attested  record  by  proper  authority  is  presumed  to  be 


Stephen,  PI.,  p.  197. 
Davis'  El.  Law,  p.  89. 


-L^avio    JJJi.  ±j<a,\\  ,  p.  OCT. 

3  Cofield  v.  McClelland,  83  U.  S.  331-335,   Mitchell  v.  U.  S.,  9  Pet. 
(34  U.  S.)  711;  U.  S.  v.  Peralta,  19  How.  (60  U.  S.)  343. 


EVIDENCE  273 

correct; 1  and  proof  of  usage  creates  a  presumption  in 
favor  of  its  continuance.2 

603.  Presumptions  of  Fact. — "A  presumption  of  fact 
is  a  rule  of  law  that  a  fact  otherwise  doubtful  may  be  in- 
ferred from  a  fact  which  is  proved."     It  must  be  based 
upon  a  fact  and  not  upon  inference  or  upon  another  pre- 
sumption, and  cannot  contradict  facts  or  overcome  facts 
proved.3 

Presumptions  of  fact  are  "  merely  natural  presumptions 
derived  wholly  and  directly  from  the  circumstances  of  a 
particular  case,  by  means  of  the  common  experience  of 
mankind,  without  the  aid  or  control  of  any  rules  of  law 
whatever."  4  They  are  inferences  drawn  from  other  facts 
and  circumstances  in  the  case,  and  should  be  made  upon 
the  common  principles  of  induction;  for  example,  "A 
letter  is  mailed  to  a  party  at  a  place  where  he  usually  re- 
ceives his  letters  and  transacts  his  business.  There  is  no 
presumption  of  law  that  he  received  it.  A  presumption  of 
fact  that  he  did  may,  however,  be  drawn."  5 

The  facts  upon  which  the  presumption  as  to  the  existence 
of  any  particular  fact  is  based,  in  a  particular  case,  must 
be  derived  from  the  evidence  submitted;  and  to  justify  a 
court-martial  in  reaching  a  conclusion  in  respect  to  the 
guilt  of  an  accused  person,  where  the  evidence  is  circum- 
stantial, the  facts  from  which  it  is  inferred  must  not  only 
be  consistent  with  the  theory  of  guilt,  but  must  be  irrecon- 
cilable with  any  reasonable  theory  as  to  his  innocence.6 

BURDEN    OF  PROOF 

604.  The  Burden  of  Proof  is  the  duty  of  proving  the 
facts  in  dispute  in  an  issue  raised  between  the  parties  in  a 

1  Ferguson  v.  Harwood,  7  Cr.  (1 1  U.  S. )  408. 

2  Dunlop  v.  U.  S.,  165  U.  S.  486. 

3  Lawson  on  Presumptive  Ev.,  p.  555  et  seq. 

4  1  Greenl.  Ev.,  Sec.  44. 

5  Lawson  on  Presumptive  Ev.,  pp.  556,  560. 
8  Davis'  Military  Law,  p.  298. 


274  MILITARY  LAW 

cause.  It  is  one  of  the  rules  governing  the  production  of 
evidence  that  "the  obligation  of  proving  any  fact  lies  upon 
the  party  who  substantially  asserts  the  affirmative  of  the 


issue. 


How  Determined. — In  civil  actions  the  issues  referred 
to  a  jury  for  trial  are  decided  by  a  preponderance  of  proof. 
But  in  every  criminal  case — which  is  the  class  of  cases 
that  come  before  a  court-martial — the  accused  is  pre- 
sumed to  be  innocent,  and  the  burden  of  proof  necessary 
to  establish  his  guilt  "beyond  reasonable  doubt"  is  upon 
the  prosecution. 

A  "reasonable  doubt,"  within  the  meaning  of  this  rule, 
is  not  a  mere  imaginary,  captious,  or  possible  doubt  but 
a  fair  doubt,  based  on  reason  and  common  sense,  and  grow- 
ing out  of  the  testimony  in  the  case.  It  is  such  a  doubt 
as  will  leave  one's  mind,  after  a  careful  examination  of  all 
the  evidence,  in  such  a  condition  that  he  cannot  say  that 
he  has  an  abiding  conviction  to  a  moral  certainty  of  the 
defendant's  guilt.2  "It  is  an  honest,  substantial  misgiving 
generated  by  the  insufficiency  of  proof;  not  a  doubt  sug- 
gested by  the  ingenuity  of  counsel  or  jury,  unwarranted 
by  the  testimony,  nor  one  born  of  a  merciful  inclination 
to  permit  the  prisoner  to  escape,  nor  one  prompted  by 
sympathy  for  him  or  those  connected  with  him;3  it  is  not 
a  fanciful  conjecture  which  an  imaginative  man  may  con- 
jure up,  but  a  doubt  which  reasonably  flows  from  the  evi- 
dence or  want  of  evidence;  a  doubt  for  which  a  sensible 
man  could  give  a  good  reason,  which  reason  must  be  based 
upon  the  evidence  or  want  of  evidence;  such  a  doubt  as  a 
sensible  man  would  act  upon  in  his  own  concerns."  4 

605.  In  criminal  cases  the  state  always  has  the  affirma- 
tive, and  whatever  the  defense,  or  theory  of  defense,  ad- 

1  1  Greenl.  Ev.,  Sec.  74. 

2  Clark's  Cr.  Proc.,  p.  539. 

3  U.  S.  v.  Harper,  33  Fed.  Rep.  471. 

4  Id.,  Davis'  Military  Law,  p.  141;   Hopt  v.  Utah,  120  U.  S.  430,  4  ;9 


EVIDENCE  275 

vanced  by  the  accused  may  be,  its  position  never  changes, 
and  hence  the  burden  of  establishing  a  case  never  shifts, 
but  remains  always  with  the  state.1  Strictly  speaking, 
the  burden  of  proof,  as  those  words  are  understood  in 
criminal  law,  is  never  upon  the  accused  to  establish  his 
innocence  or  to  disprove  the  facts  necessary  to  establish  the 
crime  for  which  he  is  indicted.  It  is  on  the  prosecution 
from  the  beginning  to  the  end  of  the  trial  and  applies  to 
every  element  necessary  to  constitute  the  crime.2  But 
when  a  prima  facie  case  has  been  made  out,  the 
necessity  of  adducing  evidence  then  devolves  on  the 
accused.3 

"The  burden  of  proof  and  the  weight  of  evidence  are 
two  very  different  things.  The  former  remains  on  the 
party  affirming  a  fact  in  support  of  his  case,  and  does  not 
change  in  any  aspect  of  the  cause;  the  latter  shifts  from 
side  to  side  in  the  progress  of  a  trial  according  to  the 
nature  and  strength  of  the  proofs  offered  in  support  or 
denial  of  the  main  fact  to  be  established."  4  The  burden 
of  proof  does  not  shift.  The  duty  of  introducing  evidence 
to  make  or  meet  a  prima  facie  case  may  shift  from  time  to 
time  as  the  trial  proceeds,  but  the  burden  of  proof  as 
correctly  understood,  that  is,  the  duty  which  rests  upon  a 
party  who  asserts  the  affirmative  of  an  issue  or  proposi- 
tion of  establishing  it  by  a  preponderance  of  evidence,  or 
beyond  a  reasonable  doubt,  as  the  case  may  be,  never 
shifts  during  the  course  of  a  trial,  but  remains  with  him 
until  the  end.4 

606.  "In  collateral  issues  arising  in  the  course  of  the 
trial  as  to  the  competency  of  witnesses,  the  admissibility 
of  testimony,  and  the  like,  the  burden  of  proof  rests  upon 

1  Am.  ar.d  Eng.  Enc.  Law,  2d  Ed.,  Vol.  5,  p   33;   Agnew  v.  U.  S., 
165  U.  S.  37;   U.  S.  v.  Gooding,  12  Wheat.  (25  U.  S.)  460. 

2  Davis  v.  U.  S.,  160  U.  S.  487, 

3  Agnew  v.  U.  S.,  165  U.  S.  37. 

4  Am.  and  Eng.  Enc.  of  Law,  2d  Ed.,  Vol.  5,  p.  22,  note  1,  and  p.  30; 
Central  Bridge  Corp.  v.  Butler,  2  Gray  (Mass.)  132. 


276  MILITARY  LAW 

the  party  wno  alleges  incompetency  or  objects  to  the  ad- 
mission  of  particular  testimony."  1 

RELEVANCY,    ETC. 

607.  In  the  trial  of  any  case  testimony  offered  may  be 
objected  to  on  the  ground  that  it  is  irrelevant,  immaterial, 
improper,  and  inadmissible  under  the  rules  of  evidence. 

The  word  " relevant"  means  that  any  two  facts  to  which 
it  is  applied  are  so  related  to  each  other  that  according  to 
the  common  course  of  events  one,  either  taken  by  itself 
or  in  connection  with  other  facts,  proves  or  renders  prob- 
able the  past,  present,  or  future  existence  or  non-existence 
of  the  other.2 

Facts  which  are  not  themselves  directly  in  issue  but 
which  tend  to  establish  the  existence  or  non-existence  of 
the  fact  in  issue,  or  of  any  fact  relevant  thereto,  are  rele- 
vant and  may  be  admitted  in  evidence;  also  the  res  gestce,  or 
facts  forming  a  part  of  the  same  transaction,  or  the  state- 
ments accompanying  an  act;  also  the  fact  of  the  existence 
of  an  ordinary  course  of  business,  or  usual  method  of 
transaction  thereof,  are  admissible. 

Proof  of  facts  which  would  be  the  natural  or  probable 
cause  or  result  of  the  existence  or  non-existence  of  facts  in 
issue,  declarations  as  to  bodily  or  mental  feelings  which 
are  simultaneous  with  the  doing  of  the  act,  facts  showing 
animus,  similar  occurrences  showing  intention,  subsequent 
conduct,  in  criminal  cases,  are  admissible,  and  facts  may 
be  shown  which  explain  relevant  facts.3 

608.  Evidence  offered  to  show  facts  which  are  not  ma- 
terial to  the  issue,  having  no  effect  upon  the  matter  before 
the  court,  and  those  which  are  improper  to  be  introduced, 
such  as  those  with  reference  to  the  character  of  the  accused 

1  Davis'  Military  Law,  p.  267. 

2  Stephen,  Dig.  Ev.,  Art.  2-9. 

3  Reynolds  on  Ev.,  Sec.  7-11. 


EVIDENCE  277 

before  he  himself  has  brought  it  in  question,  and  all  that 
which  is  inadmissible  under  the  rules  of  evidence,  may  be 
objected  to  by  either  party;  and  in  all  cases  where  such 
objection  is  made,  the  question  of  admission  is  determined 
by  the  court.  If  the  objection  is  sustained,  such  testimony 
is  excluded.  Courts-martial,  however,  are  usually  very 
liberal  in  the  construction  of  the  rules  of  evidence  in  favor 
of  the  accused,  giving  him  the  benefit  of  any  doubt. 

609.  Evidence  is  sometimes  introduced  which  does  not 
seem  relevant  at  that  time,  but  which  may  be  admitted 
upon  the  declaration  of  the  party  that  its  relevancy  will 
be  made  to  appear  later  in  the  trial.     If  its  relevancy  is 
not  so  made  to  appear  as  stated,  that  which  has  been  re- 
ceived will  be  thrown  out  and  not  considered  by  the  court. 

COMPETENCY   AND   CREDIBILITY   OF   WITNESSES     - 

610.  The  competency  of  a  witness  is  his  legal  ability  to 
testify,  and  this,  being  a  question  of  law,  is  determined  by 
the  judge.     The  credibility  of  a  witness  is  his  worthiness  of 
belief  and  is  a  question  of  fact  to  be  determined  by  the  jury 
from  the  general  manner  of  the  witness  in  giving  evidence, 
his  relation  to  the  matter  in  issue,  his  appearance,  preju- 
dices, etc.,  and  by  comparison  of  his  evidence  with  that  of 
others,  and  then  giving  it  its  proper  weight. 

611.  Courts-martial,  combining  the  functions  of  both 
judge  and  jury,  act  upon  both  competency  and  credibility. 

612.  The  law,  on  the  ground  of  public  policy,  presumes 
that  all  witnesses  tendered  in  a  court  of  justice  are  not  only 
competent  but  credible.     All  persons  are  presumed  to  be 
competent  unil  the  contrary  is  affirmatively  shown.     The 
burden  of  proof  to  show  incompetency  is  on  the  objecting 
party.1      If  a  witness  is  pronounced  incompetent  he  is  not 
allowed  to  testify. 

1  Wharton,  Ev.,  Sec.  392,  393. 


278  MILITARY  LAW 

613.  Objection  to  competency  should  be  made  before 
the  witness  takes  the  oath,  and  before  his  examination-in- 
chief  if  the  ground  therefor  be  known  to  the  objecting 
party;    if  discovered  during  such  examination-in-chief  it 
must  be  made  before  the  cross-examination.1 

614.  Grounds  of  Incompetency. — The  principal  grounds 
of  incompetency  at  common  law  are  (a)  want  of  religious 
belief,  (b)  infamy,  (c)  want  of  mental  capacity,  (d)  interest, 
(e)  being  husband  and  wife.     All  these  are  grounds  for 
objection  for  incompetency  in  the  courts  of  the  United 
States,  except  as  the  common  law  rules  of  evidence  con- 
cerning them  have  been  modified  by  statute. 

615.  a.  Want  of  Religious  Belief. — It  is  essential,  in  order 
to  ascertain  the  truth,  that  a  witness  be  under  some  moral 
obligation  to  tell  it,  and  that  some  responsibility  attach 
to  him  if  he  fails  to  do  so.     Under  the  common  law,  atheists 
and  all  persons  who  are  wanting  in  religious  belief  and  pro- 
fess no  religion  that  can  bind  their  conscience  to  speak  the 
truth  are  rejected  as  incompetent.2     The  witness  must 
believe  in  the  existence  of  a  God  who  will  reward  or  punish 
him,  and  it  has  been  held  sufficient  that  he  believes  that 
this  will  happen  in  this  world  although  he  does  not  believe 
in  a  future  state.     But  it  is  not  sufficient  that  he  believes 
himself  bound  to  speak  the  truth,  merely  for  regard  to 
character,  or  the  interests  of  society,  or  fear  of  punish- 
ment by  the  temporal  law.3 

There  is  unanimity  of  opinion  in  the  decisions  of  the 
various  courts  of  the  United  States  that  the  witness  must 
believe  in  the  existence  of  a  God  who  will  punish  false- 
hood.4 The  objections  to  the  competency  of  a  witness  to 

1  Wharton,  Ev.,  Sec.  393. 

2  1  Greenl.  Ev.,  Sec.  368;  Starkie,  Ev.,  pp.  116,  29,  note;    Davis' 
El.  Law,  pp.  68,  69.      Some  States,  however,  have  abolished,  by  statute 
law,  incompetency  from  lack  of  religious  belief  (1  Greenl.  Ev.,  Sec. 
368,  note  a). 

3  Starkie,  Ev.,  p.  116. 

4  Id.,  p.  29,  note.     See  1  Greenl.  Ev.,  Sec.  369,  note. 


EVIDENCE  279 

testify,  on  the  ground  of  "want  of  religious  belief/'  as 
existing  under  the  common  law,  are  being  modified  by 
the  statutes  of  different  States;  the  question  of  admissi- 
bility  in  such  cases  being  looked  upon  as  one  which  is  not 
so  much  as  to  the  capacity  of  a  witness  to  take  an  oath 
as  it  is  concerning  his  possession  of  that  moral  sense  which 
induces  truth-telling.1 

Courts-martial  not  being  held  strictly  to  the  rules  of 
evidence,  in  their  effort  to  get  at  the  truth  of  the  matter 
before  them,2  must  decide  in  each  case  of  objection  to  the 
admissibility  of  a  witness  on  the  ground  of  want  of  relig- 
ious belief  whether,  according  to  the  circumstances  of 
the  case,  the  witness  shall  be  excluded  or  not,  and,  if 
admitted,  as  to  the  degree  of  credibility  to  be  attached 
to  his  testimony. 

The  form  of  oath,  in  civil  trials,  is  not  essential,  and  the 
witness  may  be  sworn  in  that  form  which  he  deems  most 
binding  and  obligatory,  but  once  having  been  sworn  in 
that  form,  or  in  any  other  form  which  he  permits,  without 
objection  on  his  part,  he  becomes  responsible  and  may  be 
prosecuted  for  perjury  if  his  testimony  be  wilfully  false.3 

In  trials  by  court-martial,  the  oath  or  affirmation  being 
prescribed  by  the  statute4  (Art.  92)  for  all  persons  who 
give  evidence  before  such  courts,  this  form  of  oath  must 
be  administered;  but  the  solemn  attestation,  or  act,  which 
makes  it  binding  upon  the  conscience  of  the  witness,  may 
be  in  any  form  which  the  witness  declares  is  in  accordance 
with  his  religious  tenets  or  belief.5 

6 1 6.  b.  Infamy. — At  common  law  persons  convicted  of 
crimes  which  render  them  infamous  are  excluded  from 
being  witnesses.  An  " infamous"  crime  in  this  sense  is 

1  See  Wigmore  on  Ev.,  Vol.  3,  Sec.  1815  et  seq. 

2  See  ante,  par.  547,548. 

3  1  Greenl.  Ev.,  Sec.  371;  Reynolds  on  Ev.,  Sec.  96. 

4  See  Art.  92,  post,  par.  799. 

6  Davis'  Military  Law,  p.  517;  1  Greenl.  Ev.,  Sec.  371;  Winthrop, 
Vol.  1,  p.  400. 


280  MILITARY  LAW 

regarded  as  comprehending  treason,  felony,  and  crimen 
jalsi.1  Treason  is  defined  by  the  Constitution  of  the 
United  States  2  as  consisting  only  in  levying  war  against 
the  United  States,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort;  felony,  under  the  common  law,  was 
an  offense  punishable  capitally,  or  with  forfeiture  of  land 
and  goods,  and  a  person  convicted  of  such  an  offense  be- 
came infamous  and  forfeited  a  number  of  civil  rights,  and 
among  them  the  capacity  to  testify,  as  a  witness,  in  a 
court  of  justice.3  Imprisonment  in  a  State  prison  or 
penitentiary,  with  or  without  hard  labor,  is  considered  in- 
famous punishment,4  and  a  person  sentenced  to  such 
punishment  has  the  status  of  a  felon. 

PARDON 

617.  The  full  pardon  of  a  convict,  even  after  having 
served  his  sentence,  or  a  reversal  of  the  judgment,  restores 
his  competency  to  testify.5  But  where  the  disability  is 
not  a  consequence  of  the  judgment  but  grows  out  of  the 
character  of  the  crime  itself,  as  perjury,  and  it  is  annexed 
to  the  conviction  of  a  crime  by  the  express  words  of  a 
statute,  the  pardon  will  not,  in  such  cases,  restore  the  com- 
petency of  the  offender;  the  prerogative  of  the  sovereign 
being  controlled  by  the  authority  of  the  express  law.6 
"  The  punishment  of  crime  belongs  to  the  criminal  code; 
the  rule  of  evidence  to  the  civil."  In  cases  of  perjury, 
the  exclusion  being  under  a  law  relating  to  the  introduc- 
tion of  evidence,  the  pardon  does  not  affect  the  law  in  this 
respect. 

1  Wharton,  Ev.,  Sec.  397. 

2  Art.  3,  Sec.  3,  Cl.  1. 

8  Davis'  Military  Law,  pp.  252,  253. 

4  Id.,  p.  253;   Mackin  v.  U.  S.,  117  U.  S.  348-353;  Ex  parte  Wilson, 
114  U.  S.  417. 

5  Logan  v.  U.  S.,  144  U.  S.  263;   Boyd  v.  U.  S.,  142  U.  S.  450. 

6 1  Greenl.  Ev.,  Sec.  378  and  notes;    see  Sec.  5392,  5393,  Revised 
Statutes;  ante,  Sec.  549,  550. 


EVIDENCE  281 

618.  The  incompetency  from  infamy  must  be  established 
by  the  production  of  the  judgment  itself;  "the  record  is 
the  sole  evidence  of  guilt,  no  other  proof  being  admitted 
of  the  crime."  :  Persons  convicted  of  an  infamous  crime 
in  one  State  are  not  incompetent,  unless  by  express 
statute,  to  testify  as  a  witness  in  the  courts  of  another 
State,  or  of  the  United  States.2  Such  convictions,  however, 
may  be  established  in  evidence  with  a  view  to  affect  the 
credibility  of  the  witness.3 


CRIMEN   FALSI 

619.  Crimen  falsi  is  any  crime  which  may  injuriously 
affect  the  administration  of  justice,  by  the  introduction 
of  falsehood  and  fraud.     The  offenses  included  under  this 
head  are  forgery,  perjury,  subornation  of  perjury,  sup- 
pression of  testimony  by  bribery,  or  conspiracy  to  accuse 
one  of  a  crime,  or  to  procure  the  absence  of  a  witness,  and 
barratry.     The  crimen  falsi  of  the  common  law,  therefore, 
not  only  involves  the  charge  of  falsehood,  but  is  also 
one  which  may  injuriously  affect  the    administration  of 
justice,  by  the  introduction  of  falsehood  and  fraud  into 
judicial   proceedings.4    Congress   has    enacted   that   any 
person  convicted  of  perjury  or   subornation  of   perjury, 
under  the  laws  of  the  United  States,  shall  be  incapable  of 
giving  testimony  in  any  court  of  the  United  States,  until 
the  judgment  is  reversed.5 

620.  c.   Want  0yf  Mental   Capacity. — Want   of  mental 
capacity  may  arise  from  defect  of  understanding  through 
infancy,  insanity,  intoxication,  or  disease  of  any  kind. 
"  While  the  deficiency  of  understanding  exists,   be  the 

1  1  Greenl.  Ev.,  Sec.  372. 

2  Davis'  Military  Law,  p.  254;   Logan  v.  U.  S.,  144  U.  S.  264. 

3  Davis'  Military  Law,  p.  254. 

4 1  Greenl.  Ev.,  Sec.  373;   Wigmore  on  Ev.,  Vol.  1,  Sec.  520 
6  Sec.  5392,  5393,  Revised  Statutes. 


282  MILITARY  LAW 

cause  of  what  nature  soever,  the  person  is  not  admissible 
to  be  sworn  as  a  witness."  1 

INFANCY 

62 1 .  The  admissibility  of  the  evidence  of  infants  is  not 
limited  by  their  age  but  depends  upon  their  intelligence, 
and  of  this  the  court  judges.     There  is  no  precise  age  that 
determines  the  competency  of  an  infant.     This  depends 
on  the  capacity  and  intelligence  of  the  child,  his  apprecia- 
tion of  the  difference  between  truth  and  falsehood,  as  well 
as  of  his  duty  to  tell  the  truth.2 

INSANITY 

622.  Insane  persons  who  are  incapable  of  understand- 
ing at  the  time  of  the  commission  of  the  act  in  question, 
or  at  the  time  of  testifying,  are  incompetent.     But  if  the 
act  occurred  during  a  lucid  interval  and  the  witness  has 
since  been  cured,  or  the  testimony  is  given  during  a  lucid 
interval,  his  competency  is  restored.     "A  person  affected 
with  insanity  is  admissible  as  a  witness,  if  it  appears  to 
the  court,  upon  examining  him  and  competent  witnesses, 
that  he  has  sufficient  understanding  to  apprehend  the 
obligation  of  an  oath,  and  to  be  capable  of  giving  a  correct 
account  of  the  matters  which  he  has  seen  or  heard  in 
reference  to  the  questions  in  issue."  3     It  is  no  objection  to 
the  competency  or  credibility  of  a  witness  that  he  is  sub- 
ject to  fits  of  derangement,  if  he  be  sane  at  the  time  of 
giving  his  testimony.4    An  idiot,  being  a  person  without 
understanding,  is  incompetent  as  a  witness. 

623.  Deaf  and  dumb  persons  may  testify  by  writing, 
or  signs,  by  means  of  an  interpreter,  in  open  court,  and 
this  is  accepted  as  oral  evidence.5 

1  1  Greenl.  Ev.,  Sec.  365. 

2  Wheeler  v.  U.  S.,  159  U.  S.  523,  524. 

3  Dist.  of  Columbia  v.  Armes,  107  U.  S.  519. 
4 Evans  v.  Hettich,  7  Wheat.  (20  U.  S.)  453. 

8  Clark's  Cr.  Proc.,  p.  542;   1  Greenl.  Ev.,  Sec.  366. 


EVIDENCE  283 


INTOXICATION 

624.  A  witness  prevented  by  drunkenness,  or  any  other 
cause,  from  recollecting  the  matter  in  issue,  or  unable  to 
understand  the  questions  put  to  him,  or  to  give  rational 
answers  thereto,  or  from  comprehending  that  he  must 
speak  the  truth,  or  to  testify,  is  incompetent  and  may  be 
excluded  or  the  examination  be  postponed  until  he  is 
sober.1     If  the  witness  was  drunk  at  the  time  of  the  event 
his  credibility  may  be  impeached  by  evidence  thereof; 
and  a  like  rule  applies  to  all  others  laboring  under  dis- 
ability to  testify  from  any  similar  cause. 

625.  d.  Interest. — The  interest  which  disqualifies  in  com- 
mon law  must  be  a  "legal  interest"  in  the  event,  as  con- 
tradistinguished from  affection,  prejudice,  or  bias.2     It 
must  be  a  direct  and  certain  interest  in  the  event  of  the 
cause,  or  an  interest  in  the  record  for  the  purpose  of 
evidence.     "The  true  test  of  the  interest  of  a  witness  is, 
that  he  will  either  gain  or  lose  by  the  direct  legal  operation 
and  effect  of  the  judgment,  or  that  the  record  will  be  legal 
evidence  for  or  against  him  in  some  other  action.     It 
must  be  a  present,  certain,  and  vested  interest,  and  not  an 
interest  uncertain,  remote,  or  contingent."  3 

A  person  having  an  interest  only  in  the  question,  and 
not  in  the  event  of  the  suit,  is  a  competent  witness.4 
This  doctrine  of  disqualification  for  interest  is  applied  in 
criminal  cases  where  the  witness  has  a  direct,  certain, 
and  immediate  interest  in  the  result  of  the  prosecution.5 

Any  witness  may  testify  against  his  own  interest.6 

1  Wharton,  Ev.,  Sec.  418. 

2  Starkie,  Ev.,  p.  23. 

3 1  Greenl.  Ev.,  Sec.  390. 

4  Evans  v.  Eaton,  7  Wheat.  (20  U.  S.)  356;    Potter  v.  Nat'l  Bank, 
102  U.  S.  163. 

5  Davis'  Military  Law,  p.  255. 
8 1  Greenl.  Ev.,  Sec.  410. 


284  MILITARY  LAW 


THE   ACCUSED  AS  A  WITNESS 

626.  The  accused  has  been  given  competency  as  a  wit- 
ness by  a  statute  which  provides  that  "in  the  trial  of  all 
indictments,    informations,    complaints,    and   other    pro- 
ceedings against  persons  charged  with  the  commission  of 
crimes,  offenses,  and  misdemeanors  in  the  United  States 
courts,  Territorial  courts,  and  courts-martial,  and  courts 
of  inquiry,  in  any  State  or  Territory,  including  the  District 
of  Columbia,  the  person  so  charged  shall,  at  his  own  re- 
quest, but  not  otherwise,  be  a  competent  witness.     And 
his  failure  to  make  such  request  shall  not  create  any  pre- 
sumption against  him.'7 1    An  accused  who  waives  his  con- 
stitutional privilege  of  silence  by  voluntarily  becoming  a 
witness  in  his  own  behalf  places  himself  in  the  same  status 
as  any  other  witness,  and  may  be  cross-examined  with  the 
same  latitude  as  would  be  exercised  in  the  case  of  an  ordi- 
nary witness  as  to  the  circumstances  connecting  him  with 
the  alleged  crime.2    His  testimony  is  not  excepted  from  the 
ordinary  rules  governing  the  introduction  of  evidence,  nor 
from  the  application  of  the  usual  tests  of  cross-examination, 
rebuttal,  etc.,  but  he  cannot  be  compelled,  against  his 
objection,  to  criminate  himself,3  or  to  answer  questions 
which  will  tend  to  incriminate  or  degrade  him.4    He  is 
subject  to  impeachment.5    And  if  he  has  been  previously 
convicted  of  infamy  he  will  not  be  permitted  to  testify.6 

ACCOMPLICES 

627.  "A   particeps   criminis,    or    accomplice,  notwith- 
standing the  turpitude  of  his  conduct,  is  not,  on  that 
account,  an  incompetent  witness,  so  long  as  he  remains 

1  Act  March  16,  1878. 

2  Fitzpatrick  v.  U.  S.,  178  U.  S.  304. 

3  Dig.  Op.  J.  A.  G.  1300. 

4  Act  March  2,  1901. 

5  Fitzpatrick  v.  U.  S.,  178  U.  S.  316.     See  ante,  par.  262-264. 
8  U.  S.  v.  Hollis,  43  Fed.  Rep.  248. 


EVIDENCE  285 

not  convicted  and  sentenced  for  an  infamous  crime."  1 
The  degree  of  credit  which  ought  to  be  given  to  the  testi- 
mony of  an  accomplice  is  a  matter  exclusively  within 
the  province  of  the  jury.2  And  though  it  is  the  settled 
practice,  in  cases  of  felony,  to  require  other  evidence  in 
corroboration  of  that 'of  an  accomplice,  yet  the  manner 
and  extent  of  this  corroboration  is  undetermined.3  But 
it  should  be  sufficient  to  satisfy  the  court  "  beyond  reason- 
able doubt."  Two  or  more  accomplices  produced  as 
witnesses  do  not  corroborate  each  other,  but  the  same 
rule  applies,  and  the  same  corroboration  is  required,  as  if 
there  were  but  one.4  The  fact  that  offenders  have  been 
tried  and  convicted  as  accomplices  in  a  civil  court  is  not 
evidence  that  they  are  accomplices  in  a  trial  by  court- 
martial  for  a  military  offense  involved  in  the  same  act,  the 
military  responsibility  being  entirely  distinct  from  the  civil. 

PRIVILEGED   COMMUNICATIONS 

628.  The  term  " privileged  communications"  is  used  to 
designate  a  class  of  evidence  which,  while  relevant  to  the 
matter  in  issue,  is  made  inadmissible  by  law,  or  which  it 
is  the  privilege  of  the  witness  to  decline  to  answer.     Such 
communications  are  those  relating  to  matters  occurring 
during  certain  confidential  relations  which  it  is  the  policy 
of  the  law  to  protect. 

629.  Husband  and  Wife. — At   common  law,  in  any 
criminal  proceeding  the  husband  or  wife  cannot  be  com- 
pelled to  give  evidence  for  or  against  each  other,  even  in 
an  accusation  of  treason,5  except  in  cases  of  personal 
violence  committed  the  one  upon  the  other,  in  which  case 
the  necessities  of  justice  compel  the  relaxation  of  the  rule, 

1 1  Greenl.  Ev.,  Sec.  379. 

2  Id.   Sec.  380. 

3  Id.,  Sec.  381. 

4U.  S.  v.  Hinz,  35  Fed.  Rep.  272. 
6 1  Greenl.  Ev.,  Sec.  345. 


286  MILITARY  LAW 

and  either  may  testify.1  This  is  for  the  reason  that  such 
evidence  would  compel  a  violation  of  confidence  which  is 
regarded  as  sacred,  and  its  breach  as  contrary  to  public 
policy.  The  wife  of  a  person  on  trial  before  a  court- 
martial  cannot  properly  be  admitted  as  a  witness  for  or 
against  him;  and  the  statute  authorizing  accused  parties 
to  testify  does  not  affect  this  rule.2 

If  objection  is  made  on  the  ground  of  such  relationship 
the  burden  of  proof  is  on  the  party  objecting,  to  show  a 
valid  marriage.3 

The  death  of  the  husband  does  not  weaken  the  principle; 
a  widow  is  incompetent  to  testify,  in  a  suit  which  she  is 
neither  a  party  to,  nor  interested  in,  to  a  private  conver- 
sation held  with  her  husband  during  his  lifetime.4 

The  wife  of  an  officer  or  soldier  may  be  admitted  to 
testify  in  his  case  before  a  court  of  inquiry,  its  functions 
not  being  to  try  the  case,  but  to  investigate  it.5 

630.  Other  Confidential  Communications. — There  are 
other  confidential  communications  arising  from  personal  or 
official  relations  which  are  also  excluded  from  being  given 
in  evidence,  by  public  policy.  Communications  made  to 
public  officers,  or  grand  jurors,  with  a  view  te  criminal 
prosecution,  including  statements  of  persons  engaged  in 
the  discovery  of  crime;  the  deliberations  of  courts  and  of 
certain  bodies,  like  grand  and  petit  juries,  and  boards  of 
arbitration,  the  results  of  which,  only,  may  be  made  public ; 
the  transactions  of  legislative  committees,  and  delibera- 
tions of  legislative  bodies  in  closed  session;  diplomatic 
correspondence  and  communications  between  the  principal 
officers  of  the  several  executive  departments,  on  matters 
of  public  business,  together  with  the  proceedings  of  com- 

1  Graves  v.  U.  S.,  150  U.  S.  118;  Bassett  v.  U.  S.,  137  U.  S.  505. 

2  Dig.  Op.  J.  A.  G.  2462. 
"Wharton,  Sec.  421. 

4  Hopkins  v.  Grimshaw,  165  U.  S.  342. 

5  Davis'  Military  Law,  p.  258. 


EVIDENCE  287 

missions,  courts-martial,  and  courts  of  inquiry,  their  acts, 
discussions,  and  deliberations  while  in  closed  session,  and 
the  record  thereof,  until  published  by  proper  authority; 
and,  generally,  all  oral  or  written  communications  in  which 
the  production  of  documents  or  oral  disclosures  of  any 
kind  is  restrained  by  law  or  would,  in  the  opinion  of  the 
Executive,  be  detrimental  to  the  public  interests.1 

631.  State  Secrets. — The   Executive  of  the  Nation  or 
of  a  State  and  the  heads  of  departments  of  government 
are  privileged,  in  the  exercise  of  their  discretion,  to  de- 
termine how  far  they  will  produce  papers  or  answer  ques- 
tions as  to  public  affairs  in  a  judicial  inquiry;  but  this  privi- 
lege cannot  be  claimed  by  a  subordinate,  nor  applied  to 
communications  which,  though  made  to  an  official  person, 
are  not  made  in  the  discharge  of  public  duty.2 

632.  Attorney  and  Client. — It  being  essential  to  the 
ends  of  justice  that  the  fullest  confidence  exist  between 
an  accused  and  his  attorney,  the  law  excludes  testimony 
of  the  attorney  as  to  all  communications  between  him  and 
his  client,  made  wiiile  that  relation  exists ; 3   and  this  rule 
includes  the  clerk,  interpreter,   stenographer,   agent,   or 
other  employee  necessary  to  the  attorney  in  the  trans- 
action of  his  business.     But  it  is  the  privilege  of  the  client 
alone,  and,  if  he  voluntarily  waives  it,  it  cannot  be  in- 
sisted upon  to  close  the  mouth  of  the  attorney.4 

633.  This  common  law  privilege  does  not  extend,  how- 
ever, to  clergymen,  physicians,  or  others;5  such  privilege 
can  only  be  extended  by  statute,  as  has  already  been  done 
in  several  States. 

1  Davis'   El.    Law,  pp.  83,  84;    1  Greenl.  Ev.,  Sec.  251;    Wharton, 
Cr.  Ev.,  Sec.  509  et  seq.     See  Wigmore  on  Ev.,  Vol.  4,  Sec.  2375. 

2  Starkie,  Ev.,  Sec.  41;  Wharton,  Cr.  Ev.,  Sec.  513.     See  Wigmore  on 
Ev.,  Vol.  4,  Sec.  2367-2376. 

3  Alexander  v.   U.  S.,  138  U.  S.  353;    Conn.  Mut.  Life  Ins.  Co.  v. 
Schaefer,  94  U.  S.  457. 

4  Hunt  v.  Blackburn,  128  U.  S.  464. 

5  Starkie,  Ev.,  Sec.  40;    1  Greenl.  Ev.,  Sec.  247,  248.     See  Wigmore 
on  Ev.,  Vol.  4,  Sec.  2380-2396. 


288  MILITARY  LAW 

INCRIMINATING   EVIDENCE 

634.  The  Constitution  provides  that  no  person  "shall 
be  compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself."  l    And  Congress  has  provided  relative  to  per- 
sons subpoenaed  to  appear  before  courts-martial  that  "no 
witness  shall  be  compelled  to  incriminate  himself  or  to 
answer  any  questions  which  may  tend  to  incriminate  or 
degrade  him."  2    A  liberal  construction  is  to  be  placed 
upon  the  constitutional  provisions  for  the  protection  of 
personal  rights.3 

635.  Section  860,  Rev.  Stat.  U.  S.,  which  provides  that 
"No  pleading  of  a  party,  nor  any  discovery  or  evidence 
obtained  from  a  party  or  witness  by  means  of  a  judicial 
proceeding  in  this  or  any  foreign  country,  shall  be  given 
in  evidence,  or  in  any  manner  used  against  him  or  his 
property  or  estate,  in  any  court  of  the  United  States,  in 
any  criminal  proceeding,  or  for  the  enforcement  of  any 
penalty  or  forfeiture:    Provided,  That  this  section  shall 
not  exempt  any  party  or  witness  from  prosecution  and 
punishment    for    perjury    committed   in    discovering    or 
testifying  aforesaid,"  4  has  no  application  to  court-martial 
trials. 

"The  principle  of  the  Fifth  Amendment  to  the  Constitu- 
tion, but  not  the  Amendment  itself,  applies  to  court-martial 
trials  as  a  part  of  our  common  law  military."  Section  860, 
Rev.  Stat.,  does  not  apply  to  courts-martial  and  it  does 
not,  therefore,  set  aside  the  general  principle  which,  with 
courts-martial,  takes  the  place  of  the  constitutional  pro- 
vision,5 and  an  accused  on  trial  before  a  court-martial  is 
not  obliged,  when  testifying  as  a  witness  in  his  own 

1  Amendments  to  Constitution  of  United  States,  Art.  V. 

2  Act  March  2,  1901. 

3  Counselman  v.  Hitchcock,  142  U.  S.  547;  Boyd  v.  U.  S.,  116  U.  S. 
616. 

*  Sec.  860,  R.  S.     See  Boyd  v.  U.  S.,  116  U.  S.  632. 
*Dig.  Op.  J.  A.  G.  1020. 


EVIDENCE  289 

behalf,  to  answer  questions  where  he  states  that  his 
answers  thereto  might  tend  to  criminate  him.  The  Con- 
stitution does  not  limit  the  privilege  of  silence  of  a  witness 
to  criminal  cases  against  himself;  its  provision  is  that  no 
person  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself. .  "No  statute  which  leaves  the 
party  or  witness  subject  to  prosecution,  after  he  answers 
the  criminating  question  put  to  him,  can  have  the  effect 
of  supplanting  the  privilege  conferred  by  the  Constitution." 
Such  statutory  enactments,  "to  be  valid,  must  afford 
absolute  immunity  against  future  prosecution  for  the 
offense  to  which  the  question  relates."  1  If  a  statute 
does  afford  immunity  against  future  prosecution,  as  when 
it  is  barred  by  the  statute  of  limitations,  the  witness  will 
be  compellable  to  testify; 2  and  the  possible  impairment  of 
his  good  name  is  a  penalty  which  it  is  reasonable  he  should 
be  compelled  to  pay  for  the  common  good.3 

636.  The  objection  that  it  will  incriminate  or  degrade 
him  must  be  made  by  the  witness  himself  underneath,  and 
cannot  be  made  by  his  counsel,  or  a  party  to  the  proceed- 
ing.    The  court  cannot  compel  a  witness,  not  having  im- 
munity from  prosecution,   to  answer  a  question  which 
manifestly  and  clearly  tends  to  criminate  him.     If  the 
court  should  compel  him  to  answer  a  question  deemed 
proper  by  it,  the  answer  thereto,  if  it  should  prove  crim- 
inating, cannot  be  given  in  evidence  against  him.    A  re- 
fusal to  answer  a  proper  question  put  upon  cross-examina- 
tion is  a  proper  subject  of  comment  to  the  jury.4 

637.  "Where  a  military  witness  declines  to  answer  a 
question  on  the  ground  that  it  is  of  such  a  character  that 
the  answer  thereto  may  criminate  him,  but  the  court  de- 

1  Counselman  v.  Hitchcock,  142  U.  S.  548,  585,  586;   U.  S.  v-  Kim- 
ball,  117  Fed.  Rep.  156;   Foot  v.  Buchanan,  113  Fed.  Rep.  156. 

2  Brown  v.  Walker,  161  U.  S.  591,  598. 

3  Id.  606. 

4  Fitzpatrick  v.  U.  S.,  178  U.  S.  316. 


290  MILITARY  LAW 

cides  that  the  question  is  not  one  of  this  nature  and  that 
it  must  be  answered,  the  witness  cannot  properly  refuse 
to  respond,  and  if  he  does  so,  will  render  himself  liable 
to  charges  and  trial  under  the  62d  Article  of  War."  1 

638.  The  privilege  being  for  the  protection  of  the  witness, 
he  may  waive  it,  but  once  having  elected  to  do  so  he  is  not 
permitted  to  stop,  but  must  go  on  and  make  a  full  dis- 
closure.2 


IMPEACHMENT 

639.  The  testimony  of  a  witness  having  been  concluded 
may  be  impeached  in  four  ways : 3 

1.  By  disproving,  by  the  testimony  of  other  witnesses, 
any  facts  stated  by  him  which  are  material  to  the  issues  on 
trial. 

2.  By  proof  of  his  having  made  statements  out  of  court 
inconsistent  with  his  testimony;  provided  that  the  founda- 
tion therefor  has  first  been  laid  by  interrogating  the  witness 
about  such  contradictory  statements.     This  is  done  by 
asking  him  on  cross-examination  whether  he  has  not  made 
any  former  statement  as  to  some  fact  relative  to  the  sub- 
ject matter  of  the  action,  inconsistent  with  his  present 
testimony,  and,   if  he  does  not  admit  it,  proof  may  be 
given  that  he  did  in  fact  make  it.     "It  is  a  general  rule 
that  whenever  the  credit  of  a  witness  is  to  be  impeached 
by  proof  of  something  that  he  has  said,  or  declared,  or 
done  in  relation  to  the  cause,  he  is  first  to  be  asked,  upon 
cross-examination,  whether  he  has  said,  or  declared,  or 
done,  that  which  is  intended  to  be  proved, "  and  that  his 
attention  be  called  to  the  particular  time  and  occasion 
when,  the  place  where,  and  the  person  to  whom  he  made 

1  Dig.  Op.  J.  A.  G.  2474. 

2  Brown  v.  Walker,  161  U.  S.  597;  Dig.  Op.  J.  A.  G.  2474. 

3  Reynolds  on  Ev.,  Sec   106. 


EVIDENCE  291 

the  varying  statements; l    and  if  the  statements  are  in 
writing,  they  must  first  be  shown  to  the  witness.2 

3.  By  proof  of  any  facts  showing  bias  or  prejudice  on 
the  part  of  the  witness  in  favor  of  the  party  by  whom  he 
was  called,  or  against  the  opposite  party,  as  relationship, 
sympathy,  or  interest  in  the  matter  in  controversy  or  in 
the  event  of  the  suit;  or  proof  of  the  witness  having  been 
convicted  of  any  infamous  crime,  in  cases  where  such 
conviction  would  not  render  him  incompetent  to  testify. 

4.  By    general    evidence    affecting    his    character   for 
veracity. 

640.  A  party  cannot  impeach   the    credit   of  his  own 
witness  further  than  by  contradicting  his  testimony  as  to 
any  particular  facts  by  the  testimony  of  other  competent 
witnesses.3 

641.  The  first  two  methods  are  pursued  by  means  of  the 
cross-examination,  and  contradiction  by  other  witnesses 
whose  testimony  is  unimpeachable. 

The  third  method  is  attained  through  proof  of  the  par- 
ticular facts  tending  to  show  bias,  prejudice,  etc.,  and,  in 
case  of  infamy,  proof  or  conviction  of  an  infamous  crime, 
which  proof  must,  under  the  common  law,  always  be  made 
by  the  production  of  a  copy  of  the  record  of  the  judgment 
of  his  conviction.4 

The  fourth  method  of  impeaching  the  credit  of  a  witness 
is  by  the  testimony  of  other  witnesses  that  they  know  his 
general  reputation  for  truth  and  veracity  in  the  com- 
munity where  he  lives,  and  that  such  reputation  is  bad. 

642.  In  the  United  States  courts,  and  in  those  of  most 
of  the  States,  the  question  to  impeach  the  witness  is  re- 

1  Starkie,  Ev.,  p.  238;   Mattox  v.  U.  S.,  156  U.  S.  237;  Ch.,  M.  &  St 
P.  R.  R.  v.  Artery,  137  U.  S.  507;  Ayers  v.  Watson,  132  U.  S.  394. 

2  Wharton,  Ev.,  Sec.  555. 

3  Reynolds  on  Evidence,  Sec.  106;    Dravo  v.  Fabel,  132"  U.  S.  487; 
St.  Clair  v.  U.  S.,  154  U.  S.  134;  Hickory  v.  U.  S.,  151  U.  S.  303. 

4  Reynolds  on  Ev.,  Sec.  107. 


292  MILITARY  LAW 

stricted  to  his  general  reputation  for  truth  and  veracity; 
it  cannot  extend  to  general  moral  character  or  to  par- 
ticular facts  or  transactions.1  But  in  English  courts,  and 
in  those  of  some  States,  the  rule  permits  evidence  as  to 
general  moral  character,  and  having  testified  that  the 
reputation  of  the  witness  who  is  being  impeached  is  bad, 
the  witness  on  the  stand  may  be  asked  whether,  from 
that  reputation,  he  would  believe  him  under  oath.2 

643.  A  party  whose  witness  is  being  impeached  may 
bring  witnesses  to  his  good  reputation  in  order  to  sus- 
tain his  credit.3 

EXAMINATION  AND   CROSS-EXAMINATION 

644.  Direct  Examination:   Leading  Questions. — Ques- 
tions on  direct  examination  must  be  pertinent  to  the  issue, 
or  to  facts  relevant  thereto.    Leading  questions,  such  as 
suggest  the  answer  which  the  person  putting  them  wishes 
or  expects  to  receive,  or  which  suggest  disputed  facts  as 
to  which  the  witness  is  to  testify,  must  not  be  asked  on 
direct  examination  if  objected  to  by  the  adverse  party, 
except   with   permission   of   the   court.4    But   questions 
which  are  merely  introductory  in  character,  or  asked  for 
the  purpose  of  identification,  or  to  assist  defective  mem- 
ory, and  questions  asked  of  a  witness  who  seems  to  be 
hostile  to  the  party  introducing  him,  are  exceptions  to 
this  rule.5 

Questions  are  objectionable  as  leading  which,  embody- 
ing a  material  fact,  admit  of  an  answer  by  a  simple  nega- 
tive or  affirmative.  An  interrogatory  must  not  assume 
facts  to  have  been  proved  which  have  not  been  proved; 

1  Reynolds  on  Ev.,  Sec.  108;    Teese  v.  Huntingdon,  23  How.  (64 
U.  S.)  2,  11;  1  Greenl.  Ev.,  Sec.  461. 

2  Starkie,  Ev.,  p.  238;  Wharton,  Ev.,  Sec.  565. 

3  Wharton,  Ev.,  Sec.  569;   Starkie,  Ev.,  pp.  252,  253. 

4  Reynolds  on  Ev.,  Sec.  99. 

6  Davis'  El.  Law,  p.  83;  Wharton,  Ev.,  Sec.  498-502;  Starkie,  Ev., 
pp.  166,  170;  1  Greenl.  Ev.,  Sec.  435-438. 


EVIDENCE  293 

nor  that  particular  answers  have  been  given  which  have 
not  been  given.1 

But  on  cross-examination  leading  questions  may  be 
asked.2  The  cross-examination  must,  however,  be  con- 
fined to  the  facts  and  circumstances  connected  with  the 
matter  stated  in  the  direct  examination  of  the  witness, 
and  to  questions  tending  to  test  his  accuracy,  veracity,  or 
credibility,  or  to  shake  his  credit  by  injuring  his  character; 
and  the  witness  may  be  compelled  to  answer  any  such 
question  however  irrelevant  it  may  be  to  the  facts  in  issue, 
and  however  disgraceful  the  answer  may  be  to  himself, 
if,  in  the  opinion  of  the  court,  such  question  be  material 
to  affect  the  credibility  of  his  testimony,  and  unless  it  be 
such  that  the  answer  might  tend  to  render  the  witness 
liable  to  criminal  prosecution,  penalty,  or  forfeiture.3 

While  the  above  is  the  general  rule  governing  civil 
courts,  a  court-martial  cannot  compel  a  witness  to  an- 
swer any  question  which  may  tend  to  incriminate  or 
degrade  him.4 

645.  If  the  adverse  party  desires  to  examine  the  witness 
as  to  matters  not  stated  in  his  direct  examination,  he 
must  do  so  by  making  the  witness  his  own  and  calling  him 
to  the  stand,  as  such,  in  the  subsequent  progress  of  the 
cause.5 

646.  When  the  cross-examination  is  directed  to  matters 
not  inquired  about  in  the  principal  examination,  its  course 
and  extent  are  largely  subject  to  the  control  of  the  court, 
in  the  exercise  of  a  sound  discretion,  and  the  exercise  of 
that  discretion  is  not  reviewable  on  a  writ  of  error.6 

1  1  Greenl.  Ev.,  Sec.  434. 

2  Reynolds  on  Ev.,  Sec.  101;   Davis'  El.  Law,  p.  83. 

3  Reynolds  on  Ev.,  Sec.  101. 

4  Act  March  2,  1901.     See  Appendix  C. 

8  Houghton  v.  Jones,  1  Wall.  (68  U.  S.)  702;  Phila.  &  Trenton  R.  R. 
v.  Stimpson,  14  Pet.  (39  U.  S.)  448,  461;  1  Greenl.  Ev.,  Sec.  445. 

6  Davis  v.  Coblens,  174  U.  S.  719;  N.  P.  R.  R.  v.  Urlin,  158  U.  S. 
272;  Johnston  v.  Jones,  1  Bl.  (66  U.  S.)  210. 


294  MILITARY  LAW 

647.  A  greater  latitude  is  allowable  in  the  cross-exam- 
ination of  a  party  who  places  himself  upon  the  stand  than 
in  that  of  other  witnesses.1 

648.  A  witness   who   has   been   examined  and   cross- 
examined  may,  within  the  discretion  of  the  court,   be 
recalled  to  make  some  change  in  the  statements  made  by 
him  on  cross-examination.2 


AFFIRMATIVE   AND   NEGATIVE   EVIDENCE 

649.  It  is  a  rule  of  evidence  that,  ordinarily,  a  witness 
who  testifies  to  an  affirmative  is  entitled  to  credit  in  pref- 
erence to  one  who  testifies  to  a  negative,  because  the  latter 
may  have  forgotten  what  actually  occurred,  while  it  is 
impossible  to  remember  what  never  existed.3 


THE  SUBSTANCE   OF  ISSUE  TO   BE   PROVED;     VARIANCE 

650.  The  substance  of  the  issue  only  need  be  proved; 
but  matters  of  description  must  be  proved  as  charged. 
In  general,  allegations  of  time,  place,  quantity,  quality, 
and  values,  when  not  descriptive  of  the  identity  of  the 
subject  of  the  action,  need  not  be  proved  strictly  as  alleged. 
If  a  man  is  charged  with  stealing  ten  dollars  in  money  and 
the  evidence  shows  that  it  was  but  five  dollars,  the  sub- 
stance of  the  issue — the  fact  of  the  theft — being  proved, 
is  sufficient;  but  if  he  is  charged  with  stealing  ten  dollars 
in  gold  coin  and  the  evidence  shows  that  it  was  paper 
currency,  there  is  a  difference  in  the  matter  of  description 
between  the  allegation  and  the  proof,  and  this  constitutes 
a  variance  which  is  fatal  in  a  matter  essential  to  the 
charge. 

1  Rea  v.  Mo.,  17  Wall.  (84  U.  S.)  532. 

2  Faust  v.  U.  S.,  163  U.  S.  452. 

3  Stitt  v.  Huidekopers,  17  Wall.  (84  U.  S.)  384. 


EVIDENCE  295 


MOTIVE 

651.  Any  fact  that  shows  a  motive  to  commit  the  crime, 
or  preparation  by  the  defendant  for  the  act  charged,  and 
any  conduct  or  condition  of  the  defendant  subsequent 
to  the  act  charged,  apparently  influenced  or  caused  by 
its  doing,  and  any  act  done  in  consequence  of  it,  by  him 
or  by  his  authority,  may  be  shown;  and  when  an  act  has 
been  proved,  statements  accompanying  and  explaining 
the  act,  made  by  or  to  the  person  doing  it,  may  be  proved, 
if  they  are  necessary  to  understand  it.1  But  upon  an  in- 
dictment for  conspiracy  acts  and  declarations  of  one  con- 
spirator, made  after  the  conspiracy  has  ended,  or  not  in 
the  furtherance  of  the  conspiracy,  are  not  admissible  in 
evidence  against  the  other  conspirators.2 

1  Clark's  Cr.  Proc.,  Sec.  196-200. 

2  Logan  v.  U.  S.,  144  U.  S.  263. 


CHAPTER  XXX 

THE  LAWS  OF  WAR 

MILITARY  GOVERNMENT;  MARTIAL  LAW;  THE  MILITARY 

COMMISSION  l 

652.  The  Laws  of  War. — In  time  of  war,  or  of  insurrec- 
tion or  rebellion  when  armed  forces  are  in  the  field,  or  in 
domestic  disturbances  where  civil  authority  is  powerless 
to  enforce  the  laws,  through  uprising  or  forcible  opposi- 
tion, and  the  armed  forces  of  the  United  States  are  called 
into  operation  to  restore  the  civil  power  and  to  protect 
the  people,  the  commander  of  those  forces  possesses  powers, 
and  acts  under  an  authority,  not  possessed  by  him,  or 
which  he  is  not  authorized  by  law  to  exercise,  during  time 
of  peace  and  order.  Some  of  these  extraordinary  powers, 
are  conferred  by  statute,  such  as  the  power  to  convene 
courts-martial  for  the  trial  and  punishment  of  persons  in 
the  military  service  guilty  of  the  certain  crimes  enumer- 
ated in  the  58th  Article  of  War.  But  the  larger  part  of 
his  authority  is  derived  from  the  recognized  customs  and 
usages  of  war,  called  the  "laws  of  war/'  which  are  accepted 
as  binding  upon  all  civilized  nations,  and  as  belonging 
to,  and  being  a  part  of,  " international  law."  The  laws  of 
war  are,  therefore,  treated  of  in  works  on  " international 
law."  2 

1  For  a  full  discussion  of  the  rights,  duties,  and  obligations  of  officers 
under  Military  Government  and   Martial  Law,  and   the  origin  and 
powers  of  the  Military  Commission,  see  Birkhimer's  Military  Govern- 
ment and  Martial  Law,  2d  Ed. 

2  See  Davis,  G.  B.,  International  Law,  Chap.  X. 

296 


THE  LAWS  OF  WAR  297 

653.  General  Order  100. — In  the  United  States,  certain 
rules,  embodying  the  principles  of  the  "laws  of  war, "  were 
prepared  by  Dr.  Francis  Lieber,  revised  by  a  board  of 
officers,  duly  approved,  and  promulgated  as  "Instructions 
for  the  Government  of  the  Armies  of  the  United  States  in 
the  Field,"  by  General  Order  No.  100,  Adjutant-General's 
Office,  U.  S.  Army,  in  1863.     These  instructions  were  also 
issued,  without  modification,  for  the  government  of  the 
Armies  of  the  United  States  during  the  war  with  Spain 
in  1898. l    This  order  has  since  been  modified,  and  re- 
published  in  the  "Field  Service  Regulations,  1905." 

654.  The  existence  of  war  at  once  dissolves  all  friendly 
relations  between  the  countries  at  war,  between  each  of 
such  countries  and  the  individuals  of  the  other  country, 
and  between  the  citizens  of  each.    The  states  which  engage 
in  war  are  called  "belligerents"  and  acquire  certain  rights 
called  "belligerent  rights,"  and  have  certain  duties  and 
obligations  toward  each  other,  and  toward  other  nations 
not  engaged  in  the  war,  who  are  called  "neutrals."     Each 
citizen  of  one  belligerent  country  is  legally,  though  not 
actually,  an  enemy  of  the  other,  and  of  its  citizens.     There 
is  a  general  rule  of  non-intercourse,2  and  no  relation  what- 
ever can  exist  outside  the  necessary  communications  be- 
tween the  belligerents  as  authorized  by  the  laws  of  war, 
except  in  particular  cases  under  authority  given  by  their 
government. 

The  rights  of  individuals  are  suspended  whenever  neces- 
sity exists  therefor,  in  the  interest  of  the  welfare  of  the 
nation.  Private  property  may  be  taken  or  destroyed,  if 
the  exigency  of  war  demands  it,  within  the  sound  dis- 
cretion of  any  commander;  but  if  the  exigency  does  not 
demand  it,  and  there  is  no  justification,  under  the  cir- 
cumstances, for  such  action,  the  officer  taking  or  destroy- 

1  Davis,  G.  B.,  International  Law,  Appendix  A. 

2  Jecker  v.  Montgomery,  18  How.  (59  U.  S.)  110. 


298  MILITARY  LAW 

ing  such  property  may  be  held  personally  responsible  by 
a  military  court  for  misconduct  if  the  property  is  that  of 
an  enemy  or  of  a  citizen  of  his  own  country,  and  also,  in 
the  latter  case,  the  legality  of  his  acts  may  be  inquired 
into  by  the  civil  courts  of  his  country;  and  he  cannot 
justify  himself  for  an  unlawful  act  by  producing  the  order 
of  a  superior  officer,  if  such  order  be  illegal.  The  order 
may  palliate  but  it  can  never  justify.1  But  any  action 
against  such  officer  must  be  before  the  courts  of  his  own 
country.  An  officer  serving  in  the  enemy's  country  is  not 
liable  to  an  action  in  the  courts  of  that  country  for  injuries 
resulting  from  his  military  orders  or  acts;  nor  can  he  be 
required  by  a  civil  tribunal  thereof  to  justify  or  explain 
them  upon  any  allegation  that  they  were  not  justified  by 
military  necessity.  He  is  subject  to  the  laws  of  war,  and 
amenable  only  to  his  own  government.2 

655.  For  property  destroyed  in  the  exigencies  of  warfare, 
or  in  operations  of  armies  in  the  field,  or  in  measures  neces- 
sary for  the  safety  and  efficiency  of  its  armies,  as  property 
destroyed  in  battle,  bombardments,  construction  of  neces- 
sary field  works,  etc.,  neither  the  government  nor  the  offi- 
cer is  responsible. 

656.  The  acts  of  commanders  and  of  the  armies  of 
modern  nations  toward  each  other,  and  in  the  government 
of  occupied  territory,  and  their  relations  as  enemies  op- 
posed in  warfare,  are  governed  not  only  by  the  unwritten 
usages  and  customs  of  war  of  civilized   nations,  and,  for 
our  Army,  by  General  Order  100,  of  1863,  as  modified  in 
1905,   but  by  certain  international  agreements  binding 
upon  all  nations  signatory  thereto,  'such  as  those  of  the 
Declaration  of  Paris,  in  1856;   and  of  St.  Petersburg,  in 
1868;   the  Geneva  Convention  for  the  amelioration  of  the 
condition  of  the  sick  and  wounded,  of  1864,  amended  in 


1  Mitchell  v.  Harmony,  13  How.  (54  U.  S.)  115;   Beckwith  v.  Bean, 
U.  S.  303;  see  post,  par.  665. 

2  Dow  v.  Johnson,  100  U.  S.  158. 


THE  LAWS  OF  WAR  299 

1868;  the  Peace  Conference  at  The  Hague  in  1899,  and 
the  Geneva  Convention  of  July  6,  1906.1 

These  regulate  conditions  of  warfare  on  sea  and  on  land. 
They  provide  for  the  care  of  the  sick  and  wounded,  and  of 
prisoners,  and  their  exchange;  forbid  the  use  of  poison  or 
poisoned  arms,  or  weapons  causing  unnecessary  pain,  the 
killing  or  wounding  by  treachery,  or  of  a  disabled  or  sur- 
rendered enemy,  the  refusal  to  give  quarter,  the  unlawful 
use  of  flags  of  truce  or  the  national  flag,  or  of  insignia  or 
uniforms,  the  attack  of  places  unfortified  and  not  defended; 
they  prohibit  pillage,  and  the  destruction  of  property  ex- 
cept when  imperatively  demanded  by  the  exigencies  of 
war.  They  provide  for  the  protection  of  public  buildings 
such  as  churches,  libraries,  museums,  etc.,  for  the  treat- 
ment of  spies  and  their  preliminary  trial  before  punish- 
ment, the  treatment  of  the  inhabitants  of  an  occupied 
territory,  and  the  relations  of  the  belligerents  to  each  other 
and  to  neutrals.  Non-combatants,  persons  not  in  arms, 
are  entitled  to  protection,  but  "guerrillas,"  persons  acting 
singly  or  in  bands,  without  the  authority  of  their  govern- 
ment, are  not  entitled  to  the  protection  of  the  laws  of 
war. 

657.  The  right  of  a  belligerent  to  levy  contributions  or 
money  exactions  can  be  exercised  only  by  the  general- 
in-chief,  and  only  during  actual  occupation  and  the  ex- 
istence of  war,  and  no  reimbursement  therefor  is  required. 

658.  Requisitions  may  be  made,  in  accordance  with  the 
laws,  regulations,  and  orders  governing  them,  by  command- 
ers of  any  grade,  for  necessary  supplies,  receipts  being 
given  for   the  property  thus  taken;  and  reimbursement 
therefor  depends  upon  the  invaders'  government.2 

659.  Property  in  occupied  territory,  though  belonging  to 
private  individuals,  may  be  seized  or  destroyed,  though 

1  This,  Convention,  when   duly  ratified,  supersedes,  as  between  the 
states  signatory  thereto,  the  Convention  of  1864. 

2  Davis,  G.  B.,  Int.  Law,  pp.  307,  308. 


300  MILITARY  LAW 

the  owner  thereof  may  have  a  just  claim  for  indemnity;1 
but  the  emergency  requiring  it  must  be  shown  to  exist.2 

MILITARY   GOVERNMENT 

660.  In  connection  with  the  conduct  of  war,  either  in  a 
foreign  country  or  in  domestic  territory  in  case  of  insur- 
rection or  rebellion  of  such  proportion  that  the  opponents 
of  the  government  are  recognized  as  belligerents,  there 
may  be  occasion  for  the  military  commander  to  occupy 
and  govern  conquered  territory,  and  to  administer  a  form 
of  government  supplanting  that  of  the  other  belligerent. 
Such  occupation  and  administration  is  called  the  govern- 
ment of  military  occupation,  or  " military  government." 
This  derives  its  authority  from,  and  is  controlled  solely 
by,  the  laws  of  war. 

66 1.  The  commander  of  the  occupying  forces,  under 
those  laws,  unites  in  himself,  as  the  representative  of  the 
executive  power  of  his  nation,  all  the  functions  of  govern- 
ment, legislative,  executive,  and  judicial;   and  his  will  is, 
for  the  time,  supreme  in  all  occupied  territory,  except  as 
controlled  by  the  laws  of  war,  those  of  his  own  govern- 
ment, and  the  executive  power  thereof. 

662.  His  authority  over  that  territory  begins  with  the 
fact  of  its  military  occupation  and  the  consequent  suspen- 
sion of  the  authority  of  the  former  government. 

The  conquering  authority  has  the  right  to  displace  the 
pre-existing  authority,  and  to  assume,  to  such  extent  as  it 
may  deem  proper,  the  exercise  by  itself  of  all  the  functions 
and  powers  of  government.  "It  may  do  anything  neces- 
sary to  strengthen  itself  and  weaken  the  enemy.  There  is 
no  limit  to  the  powers  that  may  be  exerted  in  such  cases, 
save  those  which  are  found  in  the  laws  and  usages  of 
war  .  .  .  the  laws  of  war  then  take  the  place  of  the 

1  Dow  v.  Johnson,  100  U.  S.  167. 

2  U.  S.  v.  Russell,  13  Wall.  (80  U.  S.)  624,  629. 


MILITARY  GOVERNMENT  301 

Constitution  and  laws  of  the  United  States  as  applied  in 
time  of  peace. "  l 

The  true  test  of  military  occupation  is  exclusive  pos- 
session, when  the  invader  dominates  the  territory  to  the 
exclusion  of  the  former  and  regular  government.2 

663.  The  rule  of  the  commander  may  be  either  civil  or 
military  in  character,  or  partly  one  and  partly  the  other.3 
He  may  continue  in  force  any  or  all  of  the  laws  of  the 
country,  suspend  or  modify  them,  add  thereto,  or  make 
new  laws;    and  he  may  continue  the  .officials  in  office  or 
appoint  others  to  administer  the  laws. 

664.  Unless  suspended  or  superseded  by  him,  the^rdi- 
nary  municipal  laws  continue  in  force,  and  may  be  admin- 
istered by  the  ordinary  tribunals,  exercising  their  ordinary 
jurisdiction  for  the  protection  and  benefit  of  the  inhabi- 
tants themselves,  and  of  persons  not  in  the  military  ser- 
vice, in  their  relations  to  each  other;  but  persons  in  the 
military  service  are  not  amenable  thereto  for  acts  done  in 
the  performance  of  their  military  duty.4     When  the  ordi- 
nary courts  are  closed  by  the  exigency  of  war,  the  mili- 
tary commander  may  establish  special  courts  or  judges  for 
the  determination  of  cases  not  cognizable  by  the  ordi- 
nary military  tribunals.      Such   courts  were  established 
during  the  Civil  War  and  called  " provost"  courts.    They 
not  only  tried  cases  of  breaches  of  the  peace  and  viola- 
tion of  civil  ordinances  or  of  military  regulations  estab- 
lished for  the  government  of  the  locality,  but,  in  some 
instances,  took  cognizance  of  important  civil  actions,  and 
their  authority  to  do  so  has  been  affirmed  by  the  Supreme 


1  New  Orleans  v.  Steamship  Co.,  20  Wall.  (87  U.  S.)  394;  Winthrop's 
Abr.,  2d  Ed.,  p.  324. 

2  Birkhimer's  Military  Government  and  Martial  Law,  Sec.  34. 
8  Id.,  Sec.  113. 

4  Dow  v.  Johnson,  100  U.  S.  158;  Coleman  v.  Tenn.,  97  U.  S.  509. 
See  Birkhimer's  Military  Government  and  Martial  Law,  Chap.  IX; 
Dig.  Op.  J.  A.  G.  1576,  and  note. 


302  MILITARY  LAW 

Court  of  the  United  States.1     Such  courts  are  sometimes 

0 

called  " provisional"  courts. 

665.  The  military  commander  may  restrain  by  con- 
finement, and,  in  extreme  cases,  summarily  punish  per- 
sons guilty  of  violations  of  the  laws  of  war,  hostile  dem- 
onstrations, or  public  disorders.2 

But  summary  punishment  should,  unless  the  military 
commander  can  justify  his  action,  under  the  exigencies 
of  the  particular  case,  in  departing  from  the  rule,  be 
carried  out  only  after  due  trial  by  a  military  commission, 
which  is  the  recognized  tribunal  for  the  trial  of  offenses 
against  the  laws  of  war. 

If  the  commander  exceeds  his  powers  under  those  laws, 
he  is  amenable  only  to  his  own  government,  which  may 
disavow  his  acts  and  make  due  reparation  therefor,  hold- 
ing him  responsible  to  its  own  authority;  or  it  may  as- 
sume the  responsibility  for  the  acts,  in  which  case  it  be- 
comes a  question  for  settlement  between  the  two  interested 
governments.3 

When  a  military  commander,  appointed  by  4nd  repre- 
senting the  United  States  during  its  temporary  occupa- 
tion of  a  territory  after  the  conclusion  of  peace,  pursuant 
to  a  treaty,  acting  in  his  official  capacity  commits  a  tort 
against  any  individual  in  the  course  of  the  civil  adminis- 
tration of  affairs  of  the  territory,  he  is  not  exempt  from 
personal  liability.  If  an  officer  of  the  United  States  takes 
the  property  of  a  private  person  for  public  use  without 
compensation,  he  is  liable  in  tort  for  the  trespass,  al- 
though the  government  may  also  be  liable  on  an  implied 
contract.4 

But  if  such  act,  constituting  the  tort,  is  originally  au- 

1  Mechanics'  and  Traders'  Bank  v.  Union  Bank,  22  Wall.  (89  U.  S.) 
276;   Dig.  Op.  J.  A.  G.  1577,  and  note. 

2  Winthrop's  Abr.,  2d  Ed.,  p.  327. 

3  Birkhimer's  Military  Government  and  Martial  Law,  Sec.  309. 

4  O'Reilly  de  Camara  v.  Brooke,  135  Fed.  Rep.  384. 


MARTIAL  LAW  303 

thorized  and  directed  by  the  United  States  government, 
that  government,  and  not  the  military  commander,  is 
responsible;  and  a  subsequent  ratification  by  the  govern- 
ment of  an  official  act  of  its  officer  is  equivalent  to  an  orig- 
inal authorization,  and  exempts  the  military  commander 
from  personal  liability.1 

666.  The  presumption  always  is  that  the  commander 
has  made  proper  use  of  his  authority.     "An  honest  exer- 
cise of  discretion  in  the  performance  of  his  military  duty 
will  not  render  him  liable  to  be  treated  as  a  trespasser. 
No  officer  who  is  given  a  discretion  in  the  performance  of 
his   public   duties  is   punishable   because  his  judgment 
differs  from  that  of  others.    The  question  is:  Did  he  use 
his  discretion  reasonably,  and  honestly  intend  to  do  his 
duty?    If  so,  and  the  subject  matter  for  determination  be 
within  his  discretion,  he  cannot  be  held  responsible  be- 
cause, in  the  light  of  subsequent  events,  that  judgment 
was  at  fault."  2 

667.  The  military  government  established  in  a  con- 
quered territory  continues  after  peace  is  made,  until  Con- 
gress has  legislated  otherwise  and  made  needful  rules  and 
regulations  respecting  the  territory  and  property  belong- 
ing to  the  United  States.3 

MARTIAL  LAW4 

668.  Martial  Law  is  the  term  which  has  been  used  to 
designate  military  rule  of  any  kind  outside  and  beyond 
those  laws  which  govern  the  military  establishment.     It 
differs,  however,  from  "military  government/'  in  that  in 

1  O'Reilly  de  Camara  v.  Brooke,  142  Fed.  Rep.  858.     • 

2  Birkhimer's  Military  Government  and  Martial  Law,  Sec.  322;  Dins- 
man  v.  Wilkes,  12  How.  (53  U.  S.)  402;    Jecker  v.  Montgomery,  18 
How.  (59  U.  S.)  123. 

3  Cross  v.  Harrison,  16  How.  (57  U.  S.)  164;  Downes  v.  Bidwell,  182 
U.  S.  244. 

4  See  ante,  par.  5,  6. 


304  MILITARY  LAW 

such  government  the  military  power  is  exercised  "by  a 
belligerent  by  virtue  of  his  occupation  of  an  enemy's 
territory,  over  such  territory  and  its  inhabitants."  1 

669.  In  our  service  Martial  Law,  as  set  forth  by  the 
authority  of  the  War  Department,  is  regarded  in  two 
phases,  viz.:    (a)  Martial  Law  applied  to  the  Army;    (b) 
Martial  Law  at  Home  (or  as  a  domestic  fact).2 

670.  Martial  law  applied  to  the  Army  is  "  military  power 
extending  in  time  of  war,  insurrection,  or  rebellion  over 
persons  in  the  military  service,  as  to  obligations  arising 
out  of  such  emergency  and  not  falling  within  the  domain 
of  military  law,  nor  otherwise  regulated  by  law."  3 

In  this  phase,  being  the  law  applicable  to  the  Army  and 
to  persons  in  the  military  service  during  the  existence  of 
war,  it  exists,  so  far  as  it  relates  to  them  and  their  rights, 
duties,  and  obligations,  during  military  government;  while 
that  government  itself  is  a  measure  of  hostility  estab- 
lished especially  for  the  government  of  inhabitants  of  the 
occupied  territory,  outside  of  the  laws  governing  the  mili- 
tary establishment,  being  solely  the  will  of  the  commander 
exercised  under  the  laws  of  war  and  with  responsibility 
to  his  own  government. 

The  rights,  duties,  and  obligations  of  that  commander, 
and  of  the  Army  at  large,  toward  the  inhabitants  of 
occupied  territory  are  regulated  by  the  laws  of  war,  and 
" martial  law"  is,  therefore,  a  part  of  those  laws. 

671.  Martial  law  at  home  (or  as  a  domestic  fact)  is 
"military  power  exercised  in  time  of  war,  insurrection, 
or  rebellion,  in  parts  of  the  country  retaining  their  alle- 
giance, and  over  persons  and  things  not  ordinarily  subject 
to  it."  4 

1  Court-martial  Manual,  p.  5. 

2  Id.;    Justification  of  Martial  Law,  Lieber,  North  Amer.  Rev.,  1896, 
War  Dept.  Doc.  No.  79,  p.  3. 

3  Id. 


MARTIAL  LAW  305 

i 

It  results  only  from  the  existence  of  a  public  exigency 
and  a  compelling  necessity  for  military  control.  This  con- 
dition exists  when  the  ordinary  administration  of  the  laws 
fails  to  secure  the  proper  objects  of  government -and  the 
civil  authority  is,  through  necessity  therefor,  replaced 
by,  and,  for  the  time  being,  is  subordinate  to  the  military. 

The  exercise  of  this  phase  of  martial  law  affects  our  own 
laws  and  citizens,  and  is  dominant  military  rule  springing 
out  of  necessity  and  exercised  under  ultimate  military  and 
civil  responsibility.1 

Martial  law  is  not  provided  for  by  the  Constitution.  It 
is  founded  on  necessity,  attendant  on  the  fact  of  war. 
It  is  more  than  the  military  power  acting  merely  in  aid 
of  the  civil  power.  It  is  in  fact  "a  species  of  hostilities 
directed  against  individuals  who  have  placed  themselves  in 
the  position  of  enemies,  and  have  therefore  deprived  them- 
selves of  all  the  safeguards  which  the  Constitution  throws 
about  the  lives,  liberty,  and  property  of  citizens."  2  When 
opposition  to  the  laws  of  the  United  States  amounts  to 
war,  there  will  be  a  justification  for  martial  law  in  the 
locality  of  the  war  or  where  it  is  necessary.3 

When  martial  law  prevails,  the  civil  power  is  superseded 
by  the  military  power;  the  military  power  becomes  su- 
preme; the  safeguards  of  the  Bill  of  Rights  of  the  Consti- 
tution are  for  the  time  being  set  aside,  and  the  civilian 
may  be  tried  by  military  commission.  When  the  regular 
course  of  justice  is  interrupted  by  revolt,  rebellion,  or  in- 
surrection, so  that  the  courts  of  justice  cannot  be  kept 
open,  civil  war  exists,  and  hostilities  may  be  prosecuted  on 
the  same  footing  as  if  those  opposing  the  Government 
were  foreign  enemies  invading  the  land.  But  when  the 

1  Birkhimer's  Military  Government  and  Martial  Law,  2d  Ed..  Sec. 
436. 

2  Pomeroy,  Const.  Law,  7th  Ed.,  Sec.  711. 

3  Lieber,  Use  of  the  Army  in  Aid  of  the  Civil  Power;  Dig.  Op.  J.  A.  G., 
p.  786. 


306  MILITARY  LAW 

military  power  is  acting  under  the  Constitution  in  aid  of  the 
civil  power,  and  the  opposition  to  law  is  not  of  such  a 
character  that  war  exists,  the  civil  power  is  still  supreme, 
and  the.  rule  of  war  cannot  be  applied.1 

672.  When  Martial  Law  Exists. — Martial  law  exists 
only  when  the  civil  authority  is  unable  to  enforce  the 
laws  and  it  becomes  necessary  to  substitute  for  it  the 
military  power  of  the  executive  for  the  preservation  of 
order,  the  enforcement  of  laws,  and   the  restoration  of 
civil  authority  to  an  undisturbed  exercise  of  its  usual 
functions.     Its  declaration  is  only  the  statement  of  exist- 
ing facts,  that  military  authority  is  about  to  take  the 
place  of  civil  government,  and  notice  of   the  necessity 
therefor. 

It  can  come  into  existence,  without  such  necessity, 
neither  by  a  declaration  of  Congress  nor  of  the  President. 
It  arises  only  from  necessity,  the  right  of  self-preservation 
of  constitutional  government,  and  may  be  necessary  even 
for  the  safety  of  the  Constitution  itself,  and  is  superior  to 
all  other  law  while  the  necessity  exists.2 

673.  Declaration. — It  originates  in  supreme  necessity, 
but,  the  necessity  once  established,  the  fact  of  its  existence 
may  be  proclaimed  by  the  executive  authority,  who  alone 
is  judge  of  that  necessity,  entrusted  with  the  conduct  of 
the  war,  and  responsible  for  its  successful  prosecution.3 

In  exercising  military  power  to  the  prejudice  of  private 

1  Lieber,  Use  of  the  Army  in  Aid  of  the  Civil  Power;  Dig.  Op.  J.  A.  G., 
p.  786. 

2  It  is  to  be  noted  that  Congress,  by  Act  of  April  30, 1900,  has  author- 
ized the  Governor  of  Hawaii  to  call  upon  the  commanders  of  the  mili- 
tary and  naval  forces  of   the  United  States  in  the  Territory,  or  the 
militia  of  the  Territory,  to  prevent  or  suppress  lawless  violence,  inva- 
sion, insurrection,  or  rebellion,  and  in  case  of  rebellion  or  invasion,  or 
imminent  danger  thereof,  when  the  public  safety  requires  it,  to  sus- 
pend the  privilege  of  the  writ  of  habeas  c:rpus,  or  place  that  Territory, 
or  any  part  thereof,  under  martial  law  until  communication  can  be 
had  with  the  President  and  his  decision  thereon  be  made  known. 

3  Birkhimer's  Military  Government  and  Martial  Law,  2d  Ed.,  Sec. 
369. 


MARTIAL  LAW  307 

rights,  there  must  be  reasonable  ground  for  believing  the 
danger  to  be  immediate  and  impending,  or  the  necessity 
urgent  for  the  public  service.1 

674.  Effect  of  Declaration. — The  effect  of  the  declara- 
tion of  martial  law  is  to   suspend,  within  the  territory 
named,  all  law  except  the  will  of  the  military  commander, 
which  he  is  to  exercise  according  to  his  best  judgment 
and  the  exigencies  of  the  moment,  under  a  sense  of  future 
responsibility  to  civil  authority  for  unjust  or  arbitrary 
action.    The  power  of  the  officer  cannot  be  exercised  for 
purposes    of    oppression,   or  wilful  injury   to   person  or 
property.2 

The  existence  of  martial  law  does  not  necessarily  exclude 
all  civil  functions;  the  courts  may  continue  their  opera- 
tion sustained  by  the  presence  and  power  of  the  military, 
and  under  its  authority.  "Supreme  military  authority 
in  a  city  is  not  incompatible  writh  the  existence  and  author- 
ity of  courts  of  civil  jurisdiction  and  procedure  there";3 
and  their  judgments  and  decrees  are  binding  on  all 
parties  subject  to  their  jurisdiction.4 

After  martial  law  has  been  proclaimed  by  proper  au- 
thority, officers  engaged  in  the  military  service  may  law- 
fully arrest  any  one.  who,  they  have  reasonable  ground  to 
believe,  was  engaged  in  insurrection  or  rebellion,  and  may 
forcibly  enter  and  search  premises,  where  it  is  reasonable 
to  suppose  that  such  offenders  are  secreted.5 

675.  Responsibility  of  Officer. — A  military  commander 
honestly  exercising  his  judgment,  with  reasonable  grounds 
for  believing  that  the  necessity  exists  for  enforcing  martial 
law,  cannot  be  held   liable  for  what  is  done  under  it  in 


1  See  Mitchell  v.  Harmony,  13  How.  (54  U.  S.)  134. 

2  Luther  v.  Borden,  7  How.  (48  U.  S.)  1;  In  re  Fagan,  5  Blatch.  320. 

3  Pepin  v.  Lachenmeyer,  45  N.  Y.  27. 

4  Kneval  v.  Taylor,  2  Wood  27;   Coleman  v.  Tenn.,  97  U.  S.  509. 

5  Birkhimer's   Military   Government   and    Martial    Law,    Sec.    637; 
Luther  v.  Borden,  7  How.  (48  U.  S.)  46. 


308  MILITARY  LAW 

accordance  with  military  usage.1  But  the  power  should 
never  be  pushed  beyond  what  the  exigency  requires.2 
And  if  he  acts  from  malice,  or  vindictive  feeling,  or  dis- 
position to  oppress,  he  is  liable  therefor.3 

676.  Territorial  Limitation. — Where  it  exists  as  a  con- 
sequence of  war,  martial  law  is  confined  to  the  locality  of 
actual  war.     It  can  never  exist  where  the  courts  are  open 
and  in  the  proper  and  unobstructed  exercise  of  their  juris- 
diction.4 

677.  When  Martial  Law  Ceases. — Martial  law  ceases 
with  the  necessity  for  its  existence.     "  As  necessity  creates 
the  rule,  so  it  limits  its  duration;  for,  if  this  government 
is  continued  after  the  courts  are  reinstated,  it  is  a  gross 
usurpation  of  power."  5 

678.  The  proclamation  required  by  Sec.  5300,  Revised 
Statutes,  to  be  made  in  cases  of  domestic  violence,  unlaw- 
ful combinations,  etc.,  commanding  the  insurgents  to  dis- 
perse and  retire  to  their  respective  abodes,  is  not  a  procla- 
mation of  martial  law,  but  a  statutory  requirement;  though 
it  may  be  followed  by  a  declaration  of  martial  law  if  it 
fails  to  have  the  effect  of  restoring  order  and  civil  au- 
thority. 

HABEAS   CORPUS  AND   MARTIAL  LAW 

679.  The  effect  of  a  declaration  of  martial  law  is  to  sus- 
pend for  the  time  the  privilege  of  the  writ  of  habeas  corpus. Q 
The  rule  of  martial  law  is  practically  a  state  of  war,  it 
exists  by  virtue  of  necessity  which  supersedes  all  other 
law.7 

1  Birkhimer's  Military  Government  and  Martial  Law,  Sec.  631;  Dins- 
man  v.  Wilkes,  12  How.  (53  U.  S.)  403. 

2  Raymond  v.  Thomas,  91  U.  S.  716. 

3  Dinsman  v.  Wilkes,  12  How.  (53  U.  S.)  404. 

4  Ex  parte  Milligan,  4  Wall.  (71  U.  S.)  127. 

8  Cooley,  Prin.  Const.  Law,  p.  290;  Winthrop's  Abr.,  2d  Ed.,  p.  330. 
7  Finlason,  Com.  on  Martial  Law,  pp.  127,  128. 


THE  LAWS  OF  WAR  309 

The  power  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  is  included  in  the  power  to  declare  martial  law.1 
"When  martial  law  prevails,  the  civil  power  is  super- 
seded by  the  military  power,  and  the  ordinary  safeguards 
to  individual  rights  are  for  the  time  being  set  aside; 
but  it  is  incumbent  on  those  who  administer  it  to  act  in 
accordance  with  the  principles  of  justice,  honor,  human- 
ity, and  the  laws  and  usages  of  war."  2 

680.  The  condition  being  one  where  the  civil  power  is 
suspended,  the  Executive  governs  by  military  force,  and 
such  government  is,  for  the  time  being,  the  will  of  the 
commander  which  is  the  supreme  law.  Any  use  of  judicial 
power,  to  interfere  with  his  action  in  the  performance  of 
his  legitimate  duties,  would  prevent  the  very  object  of 
his  presence,  overturn  his  authority,  and  retard  the  restora- 
tion of  order  and  civil  power,  which. is  the  object  of  his 
rule.  The  power  to  suspend  the  privilege  of  the  writ  has 
been  held  to  be  a  legislative  power  and  cannot,  therefore, 
be  exercised  by  the  Executive;  yet  the  declaration  of 
martial  law,  and  the  consequent  suspension  of  the  writ  by 
the  President,  is  not  an  assumption  of,  or  an  interference 
with,  the  legislative  power,  for  the  reason  that  all  such 
powers,  and  all  civil  laws,  are  for  the  time  being  suspended 
because  of  the  necessity  which  has  demanded  the  action, 
of  the  military  power  of  the  Executive,  taken  to  protect  and 
restore  them. 

The  suspension  of  the  writ  by  the  President  included  in 
the  declaration  of  martial*  law  is  not,  therefore,  a  suspen- 
sion in  the  exact  meaning  of  the  term  as  used  in  the  Con- 
stitution and  as  construed  by  the  courts,  but  is  an  act  due 
to  "  necessity,"  and  is  in  accordance  with  the  constitu- 
tional authority  of  the  Executive  "to  preserve,  protect,  and 

1Dig.  Op.  J.  A.  G.  1639;  Id.  1643,  note;  9  Am.  Law  Rev.  507-8- 
Ex  parte  Field,  5  Blatch.  82;  Bishop's  New  Criminal  Law,  Vol.  1, 
Sec.  60-65,  and  notes. 

2  Dig.  Op.  J.  A.  G.  1644. 


310  MILITARY  LAW 

defend  the  Constitution  of  the  United  States,"  and  to 
"take  care  that  the  laws  be  faithfully  executed  (Const., 
Art.  II,  Sec.  3).  His  action  is  taken  in  an  emergency 
and  under  a  necessity  to  preserve  the  Constitution  and 
laws.  In  case  of  an  extended  war,  however,  Congress 
would  undoubtedly,  as  it  did  in  the  Civil  War,  vest  author- 
ity to  suspend  the  writ  in  the  President  by  the  passage 
of  an  act  to  that  effect.  While,  therefore,  it  is  held  that 
the  power  to  suspend  the  privilege  of  *the  writ  of  habeas 
corpus  can  only  be  exercised  by  Congress,  it  is  believed  that 
this  rules  applies  to  that  period  when  civil  authority  and 
judicial  functions  are  in  power,  and  not  to  a  period  when 
they  are  temporarily  suspended,  or  only  exercised  under 
martial  law.  The  suspension  of  the  privilege  of  the  writ, 
in  such  case,  is  due  to,  and  the  effect  of,  the  existence  of 
such  an  uprising  and  opposition  to  civil  authority  as 
renders  martial  law  a  necessity,  and  does  not  result,  and 
cannot  result,  from  any  specific  declaration  of  its  suspen- 
sion made  by  the  Executive;  such  a  declaration  being  a 
power  belonging  to  Congress.1  In  case  of  public  danger, 
at  once  so  imminent  and  grave  as  to  admit  of  no  other 
remedy,  the  maxim  salus  populi  suprema  lex  should  form 
the  rule  of  action,  and  even  should  the  executive  and 
military  authorities  of  the  United  States  suspend  the 
privileges  of  the  writ  of  habeas  corpus,  their  action  would 
then  be  justified  by  the  pressure  of  a  visible  public  neces- 
sity; if  an  act  of  indemnity  were  required,  it  would  be  the 
duty  of  Congress  to  pass  it.  But  if  the  President  should 
exercise,  or  should  authorize  others  to  exercise,  this  power 
improperly,  or  unnecessarily,  he  would  be  liable  to  im- 
peachment.2 
The  responsibility  of  the  commander,  as  to  all  that  fol- 

1  Flanders,  Const.  Law,  5th  Ed.,  Sec.  229;  Cooley,  Prin.  Const.  Law, 
p.  289. 

2Halleck,  International  Law,  p.  380;  8  Op.  Atty.-Gen.  365 
et  seq. 


THE  LAWS  OF  WAR  311 

lows  the  declaration  of  martial  law,  includes  also  responsi- 
bility for  the  suspension  of  the  privilege  of  the  writ  as 
well  as  for  his  other  acts.  Should  he  be  held  responsible 
by  civil  authority  after  peace  is  restored,  Congress  has  the 
power  to  indemnify  him,  as  it  did  General  Jackson,  who, 
for  refusal  to  obey  the  writ  of  a  judge  in  1814-1815,  in 
New  Orleans,  was,  after  peace  was  declared,  fined  $1000, 
which  he  paid,  and  for  which  Congress  afterward  reim- 
bursed him. 

The  power  of  Congress  extends  to  the  passage  of  laws 
indemnifying  or  protecting  officers  against  action  for  arrest 
previously  made.1  Indemnity  acts  were  passed  after  the 
Civil  War  for  the  protection  of  officers  from  prosecution 
for  acts  done  in  the  line  of  duty  during  the  war.2  And 
as  the  President  is  authorized  by  Sec.  5299,  Revised  Stat- 
utes United  States,  "to  take  such  measures  as  may  be 
necessary  to  suppress  insurrection,  domestic  violence,  or 
unlawful  combinations,"  which  hinder  the  execution  of 
the  laws  or  deprive  any  portion  or  class  of  people  of  their 
civil  rights  under  the  Constitution,  this  may  be  construed 
to  include  the  power  to  suspend  the  privilege  of  the  writ 
of  habeas  corpus  in  such  cases,  although  the  section  in  the 
Act  of  April  20,  1871,  from  which  Act  this  section  is  taken, 
specifically  granting  him  such  power,  was  omitted  from 
the  Revised  Statutes.3 

68 1.  The  suspension  of  the  privilege  of  the  writ  does  not 
suspend  the  writ  itself,  nor  does  it  authorize  the  arrest  of 
any  one,  but  simply  denies  to  one  arrested  the  privilege 
of  the  writ  in  order  to  gain  his  liberty.  The  writ  issues  as 
a  matter  of  course;  and  on  the  return  made  to  it  the  court 
decides  whether  the  party  applying  is  denied  the  right  of 

1  McCall  v.  McDonald,  1  Abb.  (U.  S.)  212. 

2  See  Birkhimer's  Military  Government  and  Martial  Law.   Chap 
XXIX. 

3  Congress,  by  Act  of  April  30,  1900,  has  authorized  the  Governor  of 
Hawaii  to  suspend  the  writ  of  habeas  corpus  in  certain  emergencies. 
See  ante,  par.  672,  note. 


312  MILITARY  LAW 

proceeding  any  further  with  it; 1  nor  does  it  legalize  what 
is  done  while  the  suspension  continues;  it  merely  sus- 
pends for  the  time  this  particular  remedy.2 

MILITARY   COMMISSIONS3 

682.  During  the  existence  of  war,  and  in  the  exercise  of 
military  government  or  of  martial  law  in  the  territory  under 
its  jurisdiction,  the  usual  functions  of  government  being 
suspended,  the  military  commander  is  authorized,  by  the 
established  customs  and  usages  of  the  laws  of  war,  to 
organize  tribunals  for  the  trial  of  offenders,  and  offenses, 
under  those  laws,  not  subject  to  ordinary  civil  or  military 
tribunals.     In  the  service  of  the  United  States  such  tri- 
bunals are  called  "military  commissions."     Their  exist- 
ence and  authority  under  such  circumstances  has  been 
recognized  not  only  by  Congress,  in  Sec.  1343,  Revised 
Statutes  of  the  United  States,  where  the  military  commis- 
sion is  designated  as  a  proper  tribunal  for  the  trial  of 
spies,  but  in  the  decisions  of  the  Supreme  Court  of  the 
United  States.4 

"When  martial  law  prevails,  the  civil  power  is  super- 
seded by  the  military  power;  the  military  power  becomes 
supreme;  the  safeguards  of  the  Bill  of  Rights  of  the  Con- 
stitution are  for  the  time  being  set  aside;  and  the  civilian 
may  be  tried  by  military  commission."  5 

683.  Constitution. — There    being    no    statutory    pro- 
vision governing  the  organization  of  military  commissions, 
they  have  generally  been  constituted  by  the  same  military 
authorities  who  are  empowered  by  the  Articles  of  War  to 
constitute  general  courts-martial.6 

1  Ex  parte  Milligan  4  Wall.  (71  U.  S.)  131. 

2  Cooley,  Prin.  Const.  Law,  p.  289. 

3  See  ante,  Sec.  32. 

4  Ex  parte  Vallandigham,  1  Wall.  (68  U.  S.)  243;  Ex  parte  Milligan 
4  Wall.  (71  U.  S.)  3. 

8  Lieber  Use  of  the  Army  in  Aid  of  Civil  Power;  Dig.  Op.  J.  A.  G.. 
p.  786. 

1  See  Arts.  72  and  73;  Winthrop's  Military  Law,  Vol  2  p.  63. 


THE  LAWS  OF  WAR  313 

684.  Composition. — The  composition  of  such  a  tribunal 
and  the  number  and  character  of  the  persons  composing  it 
lie  within  the  discretion  of  the  officer  constituting  it. 
Legally  it  may  be  composed  of  such  persons,  of  such  num- 
ber and  rank,  as  the  commander  may  designate;    even 
civilians  may  be  designated  as  members.1     In  general,  the 
number  of  members  constituting  such  tribunals  has  been 
either  three  or  five;   precedent  would  indicate  that  there 
should  not  be  less  than  three,  and,  when  it  is  possible,  an 
officer  to  act  as  judge-advocate  or  recorder.     If  no  such 
officer  be  detailed,  the  junior  member  will  act  as  recorder. 

685.  Jurisdiction. — "  Military  commissions  are  author- 
ized by  the  laws  of  war  to  exercise  jurisdiction  over  two 
classes  of  offenses  committed,  whether  by  civilians  or  mili- 
tary persons,  either  (a)  in  the  enemy's  country  during  its 
occupancy  by  our  armies  and  while  it  remains  under 
military  government,  or  (&)  in  a  locality,  not  within  the 
enemy's  country  or  necessarily  within  the  theater  of  war, 
in  which  martial  law  has  been  established  by  competent 
authority."  2 

"The  two  classes  of  offenses  are:  (1)  Violation  of  the 
laws  of  war.  (2)  Civil  crimes,  which,  because  the  civil  au- 
thority is  superseded  by  the  military,  and  the  civil  courts 
are  closed  or  their  functions  suspended,  cannot  be  taken 
cognizance  of  by  the  ordinary  tribunals.  In  other  words, 
the  military  commission,  besides  exercising  under  the  laws 
of  war,  a  jurisdiction  of  offenses  peculiar  to  war,  may  act 
also  as  a  substitute,  for  the  time,  for  the  regular  criminal 
judicature  of  the  State  or  district."  3  But  it  has  no  juris- 
diction of  civil  suits  or  proceedings,  either  based  upon  con- 
tract brought  to  recover  damages  on  account  of  private 
transactions,  or  personal  injuries.4 

1  Winthrop's  Military  Law,  Vol.  2,  p.  64. 

2  Dig.  Op.  J.  A.  G.  1680. 

3  Id 

4  Id.  1692. 


814  MILITARY  LAW 

Nor  does  it  have  jurisdiction  in  a  loyal  State  which  has 
not  been  invaded  and  which  is  not  engaged  in  rebellion, 
and  where  the  Federal  authority  is  unopposed  and  the 
Federal  courts  unobstructed,  to  try  a  civilian  resident 
there  on  any  criminal  charge  whatever,  even  though  the 
privilege  of  the  writ  of  habeas  corpus  has  been  sus- 
pended.1 

686.  Procedure. — Military  commissions  follow  the  mode 
of  procedure  adopted  for  general  courts-martial,  but  it  is 
not  obligatory.     The  accusations  before  them  are  gen- 
erally drawn  in  the  form  of  charges  and  specifications; 
the  accused  is  allowed  counsel;    his  witnesses  are  sub- 
poenaed for  him;  he  is  permitted  to  exercise  the  right  of 
challenge;  the  members  of  the  court,  judge-advocate,  and 
witnesses  are  sworn;   the  pleas  and  defense  as  made,  the 
general  manner  and  form  of  proceeding,  and  the  record 
itself,  are  all  similar  to  those  adopted  by  general  courts- 
martial. 

687.  Judgments. — The  finding    and   sentence   of    the 
military  commission  do  not  become  effective  until  approved 
by  the  reviewing  authority,  as  in  general  courts-martial; 
but  the  action  and  power  of  such  authority  is  not  limited 
as  it  is  in  trials  by  such  courts.     The  sentences  it  may 
adjudge   are  within  the  discretion    of    the   commission, 
subject  to  the  requirements  of  the  laws  of  its  own  coun- 
try and  the  conditions  imposed  by  the  laws  of  war.2    Its 
judgments,  when  approved,  rest  upon  the  same  basis  as 
those  of  other  legal  tribunals  and  are  not  subject  to  re- 
view by  civil  courts,  except  upon  the  question  of  jurisdic- 
tion,3 nor  to  appeal  thereto.4 

1  Ex  parte  Milligan,  4  Wall.  (71  U.  S.)  2. 

2  Birkhimer's  Military  Government  and  Martial  Law,  Sec.  614,  616; 
See  Sec.  1343,  R.  S.,  and  Instructions  for  the  Government  of  the  Armies 
of  the  U.  S.  in  Time  of  War;  G.  O.  100,  A.  G.  O.,  1863;    Field  Service 
Regulations,  U.  S.,  1905. 

3  Ex  parte  Milligan,  4  Wall.  (71  U.  S.)  2. 

4  Ex  parte  Vallandigham,  1  Wall.  (68  U.  S.)  251,  253. 


EMPLOYMENT  OF  TROOPS  TO  ENFORCE  THE  LAWS    315 


EMPLOYMENT    OF    TROOPS    IN    THE    ENFORCEMENT    OF    THE 

LAWS 

688.  The  Constitution  provides:    "The  United  States 
shall  guarantee  to  every  State  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them  against 
invasion;   and  on  application  of  the  legislature,  or  of  the 
executive    (when   the  legislature   cannot   be   convened), 
against  domestic  violence."  1 

It  is  the  constitutional  duty  of  the  President  to  take 
care  that  the  laws  be  faithfully  executed.  2  Under  this 
authority  the  President  may,  if  the  emergency  arises,  use 
the  entire  strength  of  the  nation,  including  the  Army  and 
the  militia,  for  the  purpose.3 

689.  The  Army  as  Posse  Comitatus.— The  use  of  the 
Army  in  the  enforcement  of  the  laws  has  been  strictly 
limited  by  Act  of  Congress,  which  states  that:  "From  and 
after  the  passage  of  this  Act  it  shall  not  be  lawful  to  em- 
ploy any  part  of  the  Army  of  the  United  States,  as  a 
posse  comitatus,  or  otherwise,  for  the  purpose  of  executing 
the  laws,  except  in  such  cases  and  under  such  circum- 
stances as  such  employment  of  said  force  may  be  ex- 
pressly authorized   by   the  Constitution   or    by  Act   of 
Congress,  .  .  .  and  any  person  wilfully  violating  the  pro- 
visions of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor and  on  conviction  thereof  shall  be  punished  by 
fine  not  exceeding  ten  thousand  dollars  or  imprisonment 
not  exceeding  two  years  or  by  both  such  fine  and  imprison- 
ment." 4 

690.  Purposes  for  which  Army  may  be  Used. — While 
the  laws  under  which  the  Army  may  be  employed  are 

1  Art.  IV,  Sec.  4. 

2  Art.  II,  Sec  3. 

8  In  re  Debs,  158  U.  S.  582;  In  re  Neagle,  135  U.  S.  1. 
*  Act  of  June  18,  1878. 


316  MILITARY  LAW 

given  in  full  in  Army  Regulations/  it  may  be  briefly  stated 
here  that  it  may  be  used  for  the  following  purposes,  viz.: 
For  the  enforcement  of  civil  rights  and  the  execution 
thereunder  of  warrants  or  other  judicial  processes;2  the" 
suppression  of  peonage  in  New  Mexico;  3  the  control  of 
Indians  and  their  territory,  by  examination  and  seizure 
of  stores  therein  contrary  to  law,  and  the  removal  there- 
from of  unauthorized  persons,  the  apprehension  of  persons 
violating  the  laws  therein,  conveying  them  immediately, 
by  the  nearest  convenient  and  safe  route,  to  the  civil  au- 
thority of  the  Territory  or  judicial  district  in  which  they 
are  found;  the  apprehension  of  Indians  who  have  com- 
mitted any  crimes,  offenses,  or  misdemeanors,  and  the 
prevention  of  hostilities  between  Indian  tribes;4  the  pro- 
tection of  public  lands;  5  to  aid  in  the  execution  of  estab- 
lished quarantine  and  health  laws  of  any  State,  when 
directed  by  the  Secretary  of  the  Treasury;  6  in  cases  of 
extradition;  7  the  preservation  of  neutrality;  8  and  in  case 
of  insurrection  in  any  State  against  the  government 
thereof;  9  or  for  the  enforcement  of  the  ordinary  course 
of  judicial  proceedings  and  the  faithful  execution  of  the 
laws,  or  in  case  of  rebellion  against  the  authority  of  the 
United  States,  whenever  the  laws  thereof  may  be  forcibly 
opposed  or  their  execution  be  forcibly  obstructed; 10  and 
to  suppress  insurrection,  domestic  violence,  unlawful  com- 
binations, or  conspiracies  which  obstruct  or  hinder  the 
execution  of  the  laws  of  any  State  or  of  the  United 
States,  or  deprive  any  portion  or  class  of  people  of  any 
State  of  the  rights,  privileges,  immunities,  or  protection 
to  which  they  are  entitled  under  the  Constitution  and 


1  A.  R.,  1904,  par.  483-488.         6  Sec.  4792,  R.  S. 

2  Sec.  1984,  1989,  R.  S.  7  Sec.  5275,  R.  S. 

3  Sec.  1990,  1991,  R.  S.  8  Sec.  5286,  5287,  5288  R.  S. 

4  Sec.  2118,  2147,  2150,  2151,  2152,  R.  S. 

5  Sec.  2460,  R.  S.  9  Sec.  5297,  R.  S. 

10  Sec.  5298,  R.  S. 


EMPLOYMENT  OF  TROOPS  TO  ENFORCE  THE  LAWS  317 

secured  to  them  by  the  laws  for  the  protection  of  such 
rights.1 

691.  Officers  of  the  Army  will  not  permit  troops  under 
their  command  to  be  used  as  a  posse  comitatus,  or  in  exe- 
cution of  the  laws,  except  in  accordance  with  the  foregoing 
provisions.2-  3 

692.  In  the  enforcement  of  the  laws  the  troops  of  the 
United  States  act  under  the  orders  of  the  President  as 
Commander-in-Chief ;  the  commanding  officers  of  the  troops 
are  directly  responsible  to  their  military  superiors,  and 
cannot  be  directed  to  act  under  the  orders  of  any  civil 
officer,  nor  can  they  justify  any  unlawful  or  unauthorized 
act  on  the  ground  of  an  order  or  request  received  from  a 
United  States  marshal  or  any  other  civil  officer.4 

Where  an  officer  is  applied  to  for  the  use  of  troops  for 
any  purpose  allowed  by  law,  the  application,  with  state- 
ment of  all  material  facts,  must  be  forwarded  to  the 
President,  unless  there'  is  an  emergency  so  imminent  as 
to  render  delay  dangerous  and  one  which  will  justify  his 
immediate  action,  which,  in  such  case,  will  be  reported  at 
once,  with  the  circumstances  requiring  it,  by  telegraph,  to 

1  Sec.  5299,  R.  S.  2  A.  R.,  485. 

3  Under  Sections  5298  and  5299,  R.  S.,  the  following  are  some  of  the 
laws  which  are  to  be  enforced :   That  which  prohibits  the-  obstructing 
or  retarding  the  passage  of  mail,  and  all  other  laws  relating  to  the 
carrying  of  the  mail  (Sec.  3995,  R.  S.);   the  provisions  for  the  protec- 
tion pf  trade  and  commerce  against  unlawful  restraints  and  monopolies 
(Act  July  2.J890);  for  the  use  of  the  Northern  Pacific  Railroad,  or  any 
part  thereof,  as  a  post  route  and  military  road  (Act  July  2,  1864),  and 
of  the  Union  and  Central    Pacific  Railways  and  telegraph  lines  for 
transportation  and  dispatches  (Act  July  1,1862);    for  the  use  of  the 
Atlantic  and  Pacific  Railroad  as  a  post  route  and  military  road  (Act 
July  27,  1866);   to  prevent  vessels  or  cargoes  in  the  hands  of  customs 
officers  being  taken  from  them  by  force  (Sec.  5316,  R.  S.);  to  protect 
the  rights  of  the  discoverer  of  a  guano  island  (Sec.  5577,  R.  S.);  and  to 
suppress  lawless  violence,  invasion,  insurrection,  or  rebellion  in  Hawaii 
(Act  April  30,  1900).      Troops  may  also  be  used  to  remove  trespassers 
from  military  reservations  (Dig.  Op.  J.  A.  G.  1704,  1713).     In  Alaska 
the  prohibition  of  the  Act  of  June  18,  1878,  as  to  use  of  the  Army 
as  posse  comitatus,  has  been  specifically  withdrawn  by  Congress  (Act 
June  6,  1900). 

4  A.  R.  487. 


318  MILITARY  LAW 

The  Military  Secretary  of  the  Army.1  In  all  civil  dis- 
orders, therefore,  troops,  as  an  organization,  must^  remain 
absolutely  neutral  and  passive  until  they  have  the  requi- 
site military  authority  for  their  action. 

693.  The  emergency  for  the  use  of  troops  having  arisen, 
the  method  then  used  to  meet  the  emergency,  and  the 
responsibility  therefor,  lies  with  the  military  commander; 
he  is  not  subject  to  dictation  from  civil  authority. 

"When  the  United  States  is  called  upon  to  protect  a 
State  against  ' domestic  violence'  its  military  forces  act 
in  aid  of  the  State  authorities  to  the  extent  necessary  to 
re-establish  the  civil  authority;  they  are  not,  however, 
under  the  command  of  the  State  authorities,  but  of  their 
military  officers  under  the  President,  ...  to  perform  a 
duty  to  the  State  imposed  upon  the  United  States  by  the 
Constitution."  2 

694.  It  being  the  duty  of  the  President,  under  the  Con- 
stitution, to  take  care  that  the  laws  be  faithfully  executed,3 
he  may,  when  the  necessity  arises  therefor,  use  the  entire 
strength  of  the  Nation,  including  the  Army  and  the  militia, 
for  the  purpose;  4  and  for  such  action  the  government  of 
the  United  States  has  jurisdiction  over  every  foot  of  soil 
within  its  territory,  and  acts  directly  upon  the  citizen. 
It  is,  therefore,  not  necessary  to  ask  the  permission  of  the 
State  authorities  to  enter  the  limits  of  a  State  in  order  to 
enforce  the  laws  of  the  United  States.5    Whenever  it  be- 
comes necessary  in  the  judgment  of  the  President  to  use 
the  military   forces,   in   cases   of  insurrection,   unlawful 
obstructions,  or  assemblages  of  persons,  or  rebellion  against 
the  authority  of  the  United  States,  it  is  required  that  the 
President  shall  forthwith,  by  proclamation,  command  the 

1  A.  R.  486. 

2  Dig.  Op.  J.  A.  G  1646. 

3  Const.,  Art.  II,  Sec.  3. 

4  In  re  Debs,  158  U.  S.  582;  In  re  Neagle,  135  U.  S.  1. 

•In  re  Debs,  158  U.  S.  564;  Ex  parte  Siebold,  100  U.  S.  394,  395. 


MILITARY  PERSONS  AND  CIVIL  AUTHORITY         319 

insurgents  to  disperse  and  retire  peaceably  to  their  re- 
spective abodes.1  The  limit  of  time  within  which  they 
must  comply  lies  within  the  discretion  of  the  President, 
but  it  must  be  stated  in  the  proclamation. 

RELATIONS   OF   MILITARY   PERSONS   TO   CIVIL  AUTHORITY 

695.  In  time  of  peace  the  military  is  subordinate  to  the 
civil  authority.     Persons  on  entering  the  military  service 
do  not,  thereby,  relieve  themselves  of  their  civil  obliga- 
tions, but  assume  a  new  status  in  which  they  become  ad- 
ditionally responsible  to  the  military  laws,  and  therefore 
subject  to  both  civil  and  military  authority. 

An  officer,  like  any  citizen,  is  liable  to  civil  suit  for 
damages  claimed  on  account  of  wrong  done  to,  or  re- 
sponsibilities incurred  toward,  individuals  as  a  result  of 
breaches  of  contract,  debts,  and  other  similar  matters  in- 
volved in  the  usual  business  relations  between  men,  ac- 
cording to  the  laws  of  the  State  in  which  such  action 
properly  lies. 

In  a  Territory,  where  the  government  is  under  laws 
enacted  by  Congress,  officers  and  soldiers,  unless  specially 
exempted  by  law,  are  amenable  to  the  local  courts  in  the 
same  manner  and  to  the  same  extent  as  civilians.2 

696.  For   offenses    committed  within  the  limits  of  a 
reservation  over  which   exclusive  jurisdiction  has  been 
ceded  to  the  United  States  they  are  responsible  to  the 
military  authority  and  United  States  courts  only.     But 
for  crimes  committed  within  the  jurisdiction  of  any  State 
or  Territory,  being  an  offense  against  the  laws  thereof, 
the  soldier,  as  well  as  the  civilian,  is  liable  to  prosecution 
before  the  courts  of  such  jurisdiction. 

697  An  exception  to  arrest  is  made  by  law,  whereby  no 
enlisted  man  shall,  during  his  term  of  service,  be  arrested 

1  Sec.  5300,  R.  S. 

2  Winthrop,  Abr-  Mil.  Law,  3d  Ed.,  p.  348, 


320  MILITARY  LAW 

on  mesne  process,  or  taken  or  charged  in  execution  for 
any  debt,  unless  it  was  contracted  before  his  enlistment 
and  amounted  to  twenty  dollars  when  first  contracted.1 

698.  The  method  of  securing  the  persons  of  officers  or 
soldiers  accused  of  offenses  against  the  civil  law  is  pre- 
scribed by  the  59th  Article  of  War  and  has  been  previously 
discussed.2 

699.  Officers  and  soldiers  are  liable  to  civil  actions,  as 
other  citizens,  before  the  proper  civil  courts,  for  breaches 
of  contract  and  in  suits  for  damages  or  for  other  civil 
remedies.     An  officer  may  be  sued,  as  any  citizen,  for 
damages  for  illegal  or  excessive  punishment  of  an  inferior, 
or  by  any  citizen  for  damages  arising  from  excess  of  his 
authority,  and  he  is  liable  for  the  execution  of  an  illegal 
order.     But  he  is  not  liable  on  contracts  made  by  him 
for  the  government,  when  he  has  acted  within  the  scope  of 
his  authority.      His    contracts  made   on  account  of  the 
government  are  public  and  not  personal.     They  enure  to 
the  benefit  of  and  are  obligatory  on  the  government;  not 
on  the  officer.3 

The  United  States,  like  all  sovereigns,  cannot  be  im- 
pleaded  in  a  judicial  tribunal  except  so  far  as  they  have 
consented  to  be  sued.  The  exemption  of  the  United 
States,  however,  from  judicial  process  does  not  protect 
their  officers  and  agents,  civil  or  military,  in  time  of  peace, 
from  being  personally  liable  in  an  action  of  tort  by  a 
private  person  whose  rights  of  property  they  have  wrong- 
fully invaded  or  injured,  even  by  authority  of  the  United 
States.  Such  officers  and  agents  are  liable,  in  such  case, 
to  be  sued,  although  acting  under  the  order  of  the  United 
States,  when  the  orders  or  instructions  given  them  are  not 
strictly  warranted  by  law.4 

1  Sec.  1237,  R.  S.  2  See  ante,  par.  107-116. 

3  Hodgson  v.  Dexter,  1  Or.  (5  U.  S.)  362;    Parks  v.  Ross,  11  How. 
(52  U.  S.)  362;   Belknap  v.  Schild,  161  U.  S.  17. 

4  Belknap  v.  Schild,  161   U.  S.  17,  18;    Little  v.  Barreme,  2  Or.  (6 
U.  S.)  170;  Bates  v.  Clark,  95  U.  S,  204, 


MILITARY  PERSONS  AND  CIVIL  AUTHORITY       321 

An  officer  is  not  subject  to  garnishee  for  money  in  his 
hands  due  to  persons  in  the  service  of,  or  employed  by, 
the  United  States.  Such  money  is  the  property  of  the 
United  States  until  it  has  actually  passed  into  the  posses- 
sion of  the  party  to  whom  it  is  due. 

700.  Whenever  an  officer  or  soldier  is  prosecuted  for  an 
act  done  under  proper  official  authority  he  is,  as  a  rule, 
defended  by  the  United  States,  upon  application  made  to 
the  Secretary  of  War,  and  by  him  to  the  Attorney-General, 
for  counsel  for  his  defense;  and,  though  a  judgment  may 
be  obtained  against  him,  if  he  acted  in  good  faith  and 
with  sound  discretion,  Congress  will  usually  indemnify 
him,  by  appropriating  a  sum  to  cover  the  judgment  and 
necessary  expenses. 

701.  If  an  officer  should  be  arrested  by  State  author- 
ities, and  held  to  trial  on  a  criminal  charge,  for  an  act  done 
under  color  of  authority  of  law  of  the  United  States,  he 
should  at  once  apply  to  a  United  States  court  or  judge 
for  a  writ  of  habeas  corpus.    That  court  or  judge  will 
usually  issue  such  writ.    But  where  the  offense  is  com- 
mitted, in  time  of  peace,  within  the  jurisdiction  of  a  State, 
all  the  parties  being  outside  a  military  reservation,  -the 
court  may  decline  to  issue  such  writ,  and  leave  the  deter- 
mination of  the  case  to  the  State  courts.1 

The  only  remedy  for  the  accused  is  then  by  appeal 
through  the  highest  State  courts  to  the  Supreme  Court 
of  the  United  States. 

702.  Taxation. — None  of  the  instrumentalities  of  govern- 
ment can  be  taxed,  and  the  necessary  instruments  of  office 
used  by  an  officer  of  the  United  States  in  performance  of 
his  duties  are  exempt  from  taxation.     Persons,  whether 
soldiers  or  civilians,  are  subject  to  be  taxed  on  real  estate 
owned  by  them  wherever  it  is  located,  and  personal  prop- 
erty may  also  be  taxed  except  when  it  is  held  within  the 

1  U.  S.  ex  rel.  Drury  v.  Lewis,  200  U.  S.  1. 


322  MILITARY  LAW 

limits  of  a  reservation  over  which  the  United  States  has 
exclusive  jurisdiction.  Persons  who  reside  on  a  military 
reservation,  under  jurisdiction  of  the  United  States,  are 
exempt  from  State,  county,  or  town  taxes.1 

703.  "An  officer  or  soldier  of  the  Army,  though  not 
taxable  officially,  may  be  taxable  personally.     He  is  not 
taxable  by  a  State  for  his  pay,  or  for  arms,  instruments, 
uniform   clothing,    or   other  property   pertaining   to   his 
military  office  or  capacity,  but  as  to  household  furniture 
and  other  personal  property,  not  military,  he  is  (except 
when  stationed  at  a  place  under  the  exclusive  jurisdic- 
tion of  the  United  States)   equally  subject  with  other 
residents   or  inhabitants    to    taxation    under   the  local 
law."2 

The  salary  of  a  retired  officer  is  not  subject  to  taxation 
by  State  or  municipal  authorities,  for  he  is  a  part  of  the 
Army,  though  a  part  not  often  called  into  its  active  opera- 
tions.3 

It  has  been  held  that  the  Post  Exchange  is  one  of  the 
instrumentalities  of  government  of  the  United  States  and 
therefore  not  liable  for  local  or  municipal  taxes  or 
licenses.4 

704.  Where  persons,  either  military  or  civil,  who  reside 
on  government  reservations,  are  exempt  from  taxation 
for  property  held  thereon,  they  are  also  entirely  separated 
from  the  enjoyment  of  the  rights  and  privileges  of  the  ad- 
joining State  or  municipality.     They  cannot  vote,  nor  have 
they  a  right  to  send  their  children  to  the  public  schools, 
or  to  use  the  public  libraries,  or  to  have  the  protection  of 
the  fire  department  or  like  privileges  of  a  resident,  unless 
such  privileges  are  extended  by  the  laws  of  the  State  or  of 

1  6  Op.  Attorney-General  577;  Dig.  Op.  J.  A.  G.  2427;  Dobbins  v. 
Commissioners  Erie  Co.,  16  Pet.  (41  U.  S.)  435. 

2  Dig.  Op.  J.  A.  G.  2428. 

3  Id.  2426. 

4  Id,  2014,  2436. 


MILITARY  PERSONS  AND  CIVIL  AUTHORITY        323 

a  municipality.  In  turn  they  are  exempt  from  militia 
duty,  service  as  jurors,  labor  on  roads,  and  from  civil 
and  criminal  process  of  the  local  courts,  except  so  far  as 
the  right  to  execute  the  same  has  been  reserved  to  the 
State.1 

1  Winthrop's  Abr.,  2d  Ed.,  pp.  347,  348. 


CHAPTER  XXXI 
THE  ARTICLES  OF  WAR  SEPARATELY   CONSIDERED 

705.  It  is  often  necessary  for  courts-martial  to  act  upon 
and  determine  questions  concerning  the  construction  of 
the  law  relating  to  offenses  brought  before  them.     In 
such  construction  they  are  guided  by  precedent,  by  de- 
cisions and  rulings  of  the  courts,  and  by  the  Opinions  of 
the  Attorney-General  and  of  the  Judge-Advocate-General 
of  the  Army;    therefore  some  of  the  more  important  of 
these  decisions  and  Opinions,  referring  to  certain  Articles 
of  War,  are  given  in  this  text, 

706.  In  the  enactment  of  the  Articles  of  War  for  the 
government  of  the  Armies  of  the  United  States  it  is  specific- 
ally stated  that  the  word  "officer,"  as  used  therein,  shall  be 
understood  to  designate  commissioned  officers;    the  word 
" soldier"  shall  be  understood  to  include  non-commissioned 
officers,  musicians,  artificers,  and  privates,  and  other  en- 
listed men,  and  that  "the  convictions  mentioned  therein 
shall  be  understood  to  be  convictions  by  court-martial."  1 

The  professors,  cadets,  the  army  detachments  and  band 
at  the  United  States  Military  Academy,  are  a  part  of  the 
military  establishment,  being  included  in  "the  Army  of 
the  United  States"  as  organized  by  law;2  are  subject  to 
the  Rules  and  Articles  of  War,  and  to  trial  by  general 
court-martial.3 

1  Sec.  1342,  R.  S. 

2  Sec.  1094,  R.  S.;  Act  Feb.  2,  1901. 

3  Sec.  1320-1326,  R.  S. 

324 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED.     325 

707.  Section    1342,   R.   S.     The   armies  of   the    United   States 
shall  be  governed  by  the  following  rules  and  articles.     The  word 
officer,  as  used  therein,  shall  be  understood  to  designate  com= 
missioned  officers ;  the  word  soldier  shall  be  understood  to  include 
noncommissioned   officers,  musicians,  artificers,   and   privates, 
and  other  enlisted  men,  and  the  convictions  mentioned  therein  shall 
be  understood  to  be  convictions  by  court=martial. 

708.  Article  I.     Every  officer  now  in  the  Army  of  the  United 
States  shall,  within  six  months  from  the  passing  of  this  act,  and 
every  officer  hereafter  appointed  shall,   before  he  enters  upon 
the  duties  of  his  office,  subscribe  these  rules  and  articles. 

This  Article  is  practically  obsolete  and  may  be  regarded 
as  superseded  by  the  "oath  of  office"  now  required  to  be 
taken,  in  which  the  officer  swears  that  he  "will  well  and 
faithfully  discharge  the  duties  of  his  office/' 1  which  oath 
may  be  administered  by  "any  officer  who  is  authorized, 
either  by  the  laws  of  the  United  States,  or  by  the  local 
municipal  law,  to  administer  oaths.2 

709.  Art.  2.     These  rules  and  articles  shall  be  read  to  every 
enlisted  man  at  the  time  of,  or  within  six  days  after,  his  enlist= 
me nt,  and  he  shall  thereupon  take  an  oath  or  affirmation,  in  the 
following  form:    "  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I 
will  bear  true  faith  and  allegiance  to  the  United  States  of  America ; 
that  I  will  serve  them  honestly  and  faithfully  against  all  their 
enemies  whomsoever;    and  that  I  will  obey  the    orders  of  the 
President  of  the  United  States,  and  the  orders  of  the  officers  ap= 
pointed  over  me,  according  to  the  rules  and  articles  of  war." 
This  oath  may  be  taken  before  any  commissioned  officer  of  the 
Army. 

It  will  be  observed  that  any  commissioned  officer  is 
authorized  by  this  Article  to  administer  the  oath  of  en- 
listment. 

ENLISTMENT 

710.  Art.  3      Every  officer  who  knowingly  enlists  or  musters 
into  the  military  service  any  minor  over  the  age  of  16  years  with= 
out  the  written  consent  of  his  parents  or  guardians,  or  any  minor 


Sec.  1756,  R.  S.  *  Sec.  1758,  R.  S. 


326  MILITARY  LAW 

under  the  age  of  16  years,  or  any  insane  or  intoxicated  persons, 
or  any  deserter  from  the  military  or  naval  service  of  the  United 
States,  or  any  person  who  has  been  convicted  of  any  infamous 
criminal  offense,  shall,  upon  conviction,  be  dismissed  from  the 
service,  or  suffer  such  other  punishment  as  a  court=martial  may 
direct. 

The  object  of  this  Article  was  to  prohibit  the  enlistment 
-of  persons  of  the  classes  specified  therein,  and  to  effect 
this  object  its  prohibitions  are  directory  to,  and  directly 
affect,  the  recruiting  officer.  Should  an  enlistment  be 
accomplished  contrary  to  the  provisions  of  the  Article, 
that  fact,  though  rendering  the  officer  liable  to  punish- 
ment, would  not  of  itself  affect  the  validity  of  the  con- 
tract, were  it  otherwise  legal. 

Enlistment  is  a  contract,  but,  unlike  an  ordinary  con- 
tract, it  is  one  which  "changes  the  status"  of  the  person 
who  enlists,  and  a  breach  of  such  a  contract  does  not  de- 
stroy the  status  or  relieve  from  the  obligation  which  its 
existence  imposes.1 

The  new  status  may  be  acquired  either  by  taking  the 
oath  of  enlistment  or  by  the  receipt  of  pay  from  the  Govern- 
ment as  a  soldier.2 

Insane  and  Intoxicated  Persons. — Insane  and  intoxi- 
cated persons  are  incompetent  to  enter  into  any  contract 
when  in  such  condition;  and  should  they  attempt  to  do 
so  such  action  would  be  absolutely  void;  there  would  be 
no  contract. 

Enlistments  of  the  other  classes  mentioned,  who  have 
contractual  capacity,  are  not  void  but  voidable  only  at  the 
option  of  the  government,  or,  in  the  case  of  minors,  by 
their  parents  or  guardians  in  the  manner  provided  by 
law. 

This  Article  likewise  forbids  the  enlistment  of  any  per- 
son who  has  been  convicted  of  any  infamous  crime,  which 

1  In  re  Grimley,  137  U.  S.  151;  In  re  Morrisey,  id.  159. 

2  In  re  Grimley,  137  U.  S.  156;  Art.  47. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     327 

is  one  especially  declared  to  be  so  by  statute,  or  one  the 
punishment  of  which  involves  confinement  in  a  State 
prison  or  penitentiary. 

Minors. — The  limits  of  age  for  original  enlistment  in 
the  Army  are  now  18  and  35  years.1  Minors  between 
the  ages  of  18  and  21  may  be  enlisted  with  the  written 
consent  of  their  parents  or  guardians,  provided  they  have 
such,  who  are  entitled  to  their  custody  and  control.  If 
a  minor  takes  the  oath  of  enlistment,  asserting  therein 
that  he  is  over  21  years  of  age,  it  is  a  fraudulent 
enlistment;  but  the  minor  cannot  claim  release  on 
account  of  his  minority;  he  cannot  take  advantage  of 
his  fraud  and,  by  his  own  act,  relieve  himself  from 
his  obligations  as  a  soldier  or  his  liability  to  military 
control.2 

The  United  States  may,  however,  release  the  minor 
from  his  contract,  or  such  release  may  be  secured  through 
an  application  of  the  parent  or  guardian,  entitled  to  his  ser- 
vice, and  discharge  thereupon  ordered  by  a  United  States 
court.  The  provision  of  law  with  reference  to  the  enlist- 
ment of  a  minor  is  for  the  benefit  of  the  parent  or  guardian, 
entitled  to  his  custody  and  control,  and  gives  no  privilege 
to  the  minor.3  He  is  subject  to  charges  and  trial  for 
fraudulent  enlistment  or  other  military  offense,4  and  will 
not,  if  under  charges,  be  discharged  on  a  writ  of  habeas 
corpus  secured  by  his  parent  or  guardian,  until  the  ter- 
mination of  the  military  proceedings  and  the  expiration 
of  his  sentence,  if  any  be  imposed  thereunder.5 

The  act  prohibiting  the  enlistment  of  minors  applies 
to  such  enlistments  in  the  volunteer  army.6 

1  Act  March  2,  1899;  A.  R.  858. 

2  In  re  Grimley,  137  U.  S.  147;  In  re  Morrisey,  id.  157. 

4  In' re  Kaufman,  41  Fed.  Rep.  876;  Jn  re  Miller,  114  Fed.  Rep.  838. 

5  In  re  Lessard,  134  Fed.  Rep.  305;   In  re  Grimley,  137  U.  S.  150; 
In  re  Scott,  144  Fed.  Rep.  79;  see  ante  par.  229. 

9  In  re  Burns,  87  Fed.  Rep.  796. 


328  MILITARY  LAW 

Deserter. — The  Article  also  prohibits  the  enlistment 
of  any  deserter  from  the  military  or  naval  service  of  the 
United  States.  A  " deserter"  is  a  duly  enlisted  soldier 
who  has  broken  his  contract  of  enlistment  by  absenting 
himself  from  his  proper  command  with  an  intent  not  to 
return.  The  term  includes  not  only  those  who  have  been 
convicted  of  desertion,  but  also  those  who  are  absent  in 
desertion,  charged  therewith  on  the  rolls  and  returns  of 
the  command  to  which  they  belong.1 

The  provisions  of  the  Article  do  not,  however,  apply  to 
a  deserter  whose  offense  has  been  pardoned,  nor  to  one 
who  has  been  restored  to  duty  without  trial. 

Fraudulent  Enlistment. — Fraudulent  enlistment  and 
the  receipt  of  any  pay  or  allowance  thereunder  is  declared 
to  be  a  military  offense,  and  punishable  by  court-martial, 
under  the  62d  Article  of  War.2 

"A  fraudulent  enlistment  is  an  enlistment  procured  by 
means  of  a  wilful  misrepresentation  in  regard  to  a  qualifi- 
cation or  disqualification  for  enlistment,  or  by  an  inten- 
tional concealment  of  a  disqualification,  which  has  had  the 
effect  of  causing  the  enlistment  of  a  man  not  qualified  to 
be  a  soldier,  and  who  but  for  such  false  representation  or 
concealment  would  have  been  rejected."  3 

In  charges  for  fraudulent  enlistment  the  allegation  in 
the  specification  of  receipt  of  pay  and  allowances  is  essen- 
tial to  properly  describe  the  military  offense  denned  and 
prohibited  by  the  statute.4 

A  soldier  who  enlists  fraudulently  may  be  either  pro- 
ceeded against  by  charges  under  the  62d  Article  of  War 
or  he  may  be  discharged  " without  honor."5  But  if 
charges  are  brought  against  him  and,  upon  conviction,  the 

1  Davis'  Mil.  Law,  p.  350. 

2  Act  July  27,  1892. 

3  Cir.  13,  H.  Q.  A.,  A.  G.  O.,  1892. 

4  Dig.  Op.  J.  A.  G.  1418;  see  In  re  Carver,  103  Fed.  Rep.  624. 

5  A.  R.  148. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     329 

sentence    does   not   include    dishonorable  discharge,  the 
government  cannot  also  then  summarily  discharge  him.1 

DISCHARGES 

711.  Art.  4.  No  enlisted  man,  duly  sworn,  shall  be  discharged 
from  the  service  without  a  discharge  in  writing,  signed  by  a  field 
officer  of  the  regiment  to  which  he  belongs,  or  by  the  command- 
ing  officer,  when  no  field  officer  is  present;  and  no  discharge 
shall  be  given  to  any  enlisted  man  before  his  term  of  service 
has  expired,  except  by  order  of  the  President,  the  Secretary  of 
War,  the  commanding  officer  of  a  department,  or  by  sentence 
of  a  general  court-martial. 

A  discharge  in  writing  in  pursuance  of  the  foregoing 
Article  separates  the  soldier  from  service  in  the  Army.  It 
is  the  legal  evidence  of  the  fact  of  his  discharge  therefrom; 
of  his  release  from  the  enlistment  contract,  and  of  the 
circumstances,  when  stated,  under  which  it  was  given.2  It 
releases  him  from  amenability  for  all1  offenses  charged 
against  him  during  that  particular  enlistment,  including 
that  of  desertion,  except  as  provided  in  the  60th  Article  of 
War;  but  it  does  not  relieve  him  from  the  consequences 
of  a  desertion  committed  during  a  prior  enlistment.3 

Discharge  before  expiration  of  service  may  be  given: 

(a)  By  order  of  the  President  or  Secretary  of  War. 
(6)  By  sentence  of  a  general  court-martial  or  military 
commission. 

(c)  On  certificate  of  disability. 

(d)  In  compliance  with  an  order  of  one  of  the  United 

States  courts,  or  a  justice  or  a  judge  thereof,  on 
a  writ  of  habeas  corpus. 

(e)  By  purchase  and  by  favor  under  rules  published 

by  the  War  Department.4 

1  Dig.  Op.  J.  A.  G.  1413. 

2  Id.  1152. 

3  Id.  1166. 

4  A.  R.  138,  142. 


330  MILITARY  LAW 

The  contract  of  enlistment,  though  made  for  a  fixed 
term,  may  be  annulled  by  discharge  of  the  soldier  by 
Executive  order  under  the  authority  conferred  by  this 
Article,  and  such  discharge  is  in  legal  effect  an  honorable 
discharge.1 

When  granted  upon  petition  of  the  soldier,  conditions 
may  be  prescribed.2 

When  a  soldier  has  enlisted  for  a  certain  term  of  years 
only,  he  has  a  legal  right  to  discharge  at  the  expiration  of 
that  term;  but  he  cannot  discharge  himself.  If  he  is 
illegally  held  beyond  his  term  of  enlistment  his  recourse 
should  be  to  the  Federal  courts  for  a  writ  of  habeas  corpus, 
which,  upon  the  fact  of  illegal  detention  being  shown,  will 
operate  to  release  him  without  any  regard  to  a  military 
discharge.3 

MUSTER;  FALSE  MUSTER 

712.  Art.  5.  Any  officer  who  knowingly  musters  as  a  soldier 
a  person  who  is  not  a  soldier  shall  be  deemed  guilty  of  know= 
ingly  making  a  false  muster,  and  punished  accordingly. 

A  " muster"  is  the  assembling,  inspection,  and  verifica- 
tion of  the  members  of  any  command,  or  any  component 
part  thereof,  and  official  acceptance  thereof,  as  in  the 
service  of  the  United  States,  and  is  usually  made  on  en- 
trance of  an  organization  into  the  service  of  the  United 
States  as  a  body,  or  of  an  organization  already  in  the 
service  prior  to  regular  payments  thereto. 

The  muster  is  made  from  rolls  previously  prepared  by 
the  commanding  officer,  showing  the  individuals,  arms, 
animals,  etc.,  pertaining  to  the  command  which  are  to 
be  verified  by  the  mustering  officer. 

A  "false  muster"  is  the  illegal  acceptance  of  any  per- 
son or  thing  borne  on  the  rolls,  which  is  not  there  in  con- 

1  Davis'  Mil.  Law,  p.  356. 

2  Grimley  v.  U.  S.,  32  Ct.  Cl.  285. 

3  See  Dig.  Op.  J.  A.  G.,  p.  5,  note. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     331 

formity  with  law  and  regulations,  or  of  which  the  char- 
acter or  condition  is  not  such  as  is  certified  to  by  the 
mustering  officer.  The  substitution  of  one  man  or  horse 
for  another,  whether  belonging  to  the  service  or  not,  the 
presenting  of  either  a  second  time,  under  a  different  de- 
scription, at  the  same  muster;  the  mustering  of  any  person 
as  a  soldier  who  is  in  fact  not  a  soldier;  or  the  reporting  of 
officers  and  men  as  present  who  are  really  absent,  or  as  be- 
longing to  the  organization  after  they  have  been  separated 
therefrom  by  death,  discharge,  or  otherwise,  or  representing 
the  members  of  the  body  as  efficient  when  by  their  con- 
dition and  according  to  regulation  they -are  inefficient, 
would  be  some  of  the  acts  which  constitute  false  muster.1 
The  word  " knowingly"  or  " knowing,"  where  it  occurs 
in  these  Articles,  is  an  essential  element  of  the  crime,  and 
should  be  specifically  alleged  in  any  specification  drawn 
under  said  Articles,  as  showing  the  intent. 

RECEIVING   PAY,    ETC.,    FOR  MUSTER 

713.  Art.  6.     Any  officer  who  takes  money,  or  other  thing, 
by  way  of  gratification,  on  mustering  any  regiment,  troop,   bat- 
tery, or  company,  or  on  signing  muster  rolls,  shall  be  dismissed 
from  the  service,  and  shall  thereby  be  disabled  to  hold  any  office 
or  employment  in  the  service  of  the  United  States. 

The  receipt  of  money,  or  of  any  other  thing,  by  way  of 
gratification  for  mustering  an  organization,  or  a  false 
muster  of  man  or  horse,  or  the  making  of  a  false  certifi- 
cate relating  to  the  absence  or  pay  of  an  officer  or  soldier, 
subjects  the  offender  to  the  mandatory  penalty  of  dis- 
missal under  the  foregoing  Articles,  and,  under  the  6th 
and  14th  Articles,  to  the  additional  penalty  of  disability 
to  hold  office  or  employment  under  the  United  States. 

RETURNS 

714.  Art.   7.     Every  officer  commanding  a  regiment,   an   in- 
dependent troop,  battery,  or  company,  or  a  garrison,  shall,  in 

1  Davis'  Mil.  Law,  p.  369;  Samuel,  p.  301. 


332  MILITARY  LAW 

the  beginning  of  every  month,  transmit  through  the  proper  chan- 
nels, to  the  Department  of  War,  an  exact  return  of  the  same, 
specifying  the  names  of  the  officers  then  absent  from  their  posts, 
with  the  reasons  for  and  the  time  of  their  absence.  And  any 
officer  who,  through  neglect  or  design,  omits  to  send  such  re= 
turns,  shall,  on  conviction  thereof,  be  punished  as  a  court=martial 
may  direct. 

A  "  re  turn"  is  an  official  account  or  statement,  or  re- 
port rendered  by  an  officer  to  his  superior,  pertaining  either 
to  the  strength,  organization,  and  condition  of  his  com- 
mand, with,  under  the  7th  Article  of  War,  the  names  of 
absent  officers  and  the  time  of  their  absence;  or  it  may 
be  an  account  of  the  arms,  ammunition,  clothing,  public 
funds,  property,  or  stores,  which  is  required  to  be  made 
by  an  officer  in  possession  thereof  or  accountable  therefor. 

The  former  are  called  "  returns  of  strength  of  com- 
mand/' the  latter  " money  accounts"  or  " property  re- 
turns." Returns  of  strength  of  the  command  are  usually 
made  to  commanding  officers,  superior  in  rank  to  the 
officer  making  the  return,  or  to  the  War  Department. 

715.  Art.  8.  Every  officer  who  knowingly  makes  a  false 
return  to  the  Department  of  War,  or  to  any  of  his  superior  of= 
ficers,  authorized  to  call  for  such  returns,  of  the  state  of  the 
regiment,  troop  or  company,  or  garrison  under  his  command; 
or  of  the  arms,  ammunition,  clothing  or  other  stores  thereunto 
belonging,  shall,  on  conviction  thereof  before  a  court-martial, 
be  cashiered. 

"Property  returns"  and  "money  accounts"  are  made  to 
those  departments  to  which  accountability  for  property 
or  money  belongs,  each  supply  department,  with  the  Pay 
Department,  having  its  form  for  returns  and  regulations, 
with  regard  thereto. 

All  officers  charged  with  accountability  for  property 
or  money  are  required  to  make  returns  therefor  supported 
by  proper  vouchers,  in  accordance  with  the  regulations  of 
the  department  concerned. 


THE    ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     333 

It  is  only  as  a  commander  of  a  regiment,  troop,  com- 
pany, or  garrison,  that  an  officer  can  be  made  amenable 
under  this  Article.  An  officer  not  exercising  one  of  those 
commands  is  not  within  its  terms.  The  word  "  re  turns" 
as  used  in  this  Article  does  not  include  returns  of  "  funds," 
but  it  refers  mainly  to  the  personnel  of  the  command.  A 
false  return  for  a  company  fund  would  more  properly  be 
charged  under  another  Article,  as  the  61st  or  62d.x  These 
returns  include,  however,  those  required  to  be  made  to 
the  War  Department  under  Article  8,  and  such  other 
returns  or  reports,  as  to  the  strength  or  composition  of  a 
military  command,  as  may  be  required  from  time  to 
time  by  proper  superior  authority;  together  with  such 
as  may  be  required  to  be  rendered  in  respect  to  the  several 
classes  of  public  property  specified  in  this  Article.  "The 
amenability  herein  referred  to  is  in  addition  to  that  en- 
forced by  the  Treasury  Department  -and  its  accounting 
officers,  in  accordance  with  the  terms  of  the  Revised 
Statutes,  and  the  several  enactments  amendatory  thereto."2 

The  sentence  "to  be  cashiered"  was  formerly  looked 
upon  as  more  severe  in  character  than  simple  "dismissal," 
in  that  the  term  appeared  to  convey  an  idea  of  disgrace 
with  it  in  addition  to  separation  from  the  Army;  but  there 
is  now  no  practical  difference  in  the  use  of  the  terms,  the 
words  "cashiered"  and  "dismissed  from  the  service" 
being  now  considered  practically  synonymous.3 

716.  Art.  9.  All  public  stores  taken  from  the  enemy  shall 
be  secured  for  the  service  of  the  United  States;  and  for  neglect 
thereof  the  commanding  officer  shall  be  answerable. 

This  Article  is  in  accordance  with  the  rules  of  Inter- 
national Law  and  the  Laws  of  War.  The  title  to  captured 
property  vests  in  the  captor's  government  and  not  in  the 

1  Dig.  Op.  J.  A.  G.,  p.  6. 

2  Davis'  Mil.  Law,  p.  360. 

3  Court-martial  Manual,  p.  100,  note. 


334  MILITARY  LAW 

individual  captor,  who  is  in  the  service  of  the  govern- 
ment.1 All  persons  in  the  military  or  naval  service  of 
the  United  States  are  prohibited  from  buying  or  selling, 
trading,  or  in  any  way  dealing  in  captured  or  abandoned 
property,  for  their  own  benefit,  directly  or  indirectly.2 

Such  captures,  becoming  the  property  of  the  United 
States,  are  subject  to  the  disposition  of  Congress,  which 
is  exclusively  vested  with  the  "  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United 
States,"3  and  "to  make  rules  concerning  captures  on 
land  and  water."  4 

"  An  officer  or  soldier  of  the  Army  who  assumes  of  his 
own  authority  to  appropriate  such  articles  renders  him- 
self chargeable  with  a  military  offense."  5 

ACCOUNTABILITY   FOR   PROPERTY 

717.  Art.  10.  Every  officer  commanding  a  troop,  battery, 
or  company,  is  charged  with  the  arms,  accoutrements,  ammuni= 
tion,  clothing,  or  other  military  stores  belonging  to  his  command) 
and  is  accountable  to  his  colonel  in  case  of  their  being  lost,  spoiled, 
or  damaged  otherwise  than  by  unavoidable  accident,  or  on  actual 
service. 

This  fixes  the  responsibility  for  the  presence  and  con- 
dition of  the  arms,  etc.,  of  his  command  upon  the  officer 
commanding,  who  must  be  accountable  to  the  colonel 
therefor,  "in  case  of  their  being  lost,  spoiled,  or  damaged 
otherwise  than  by  unavoidable  accident,  or  on  actual 
service."  By  "unavoidable"  is  intended  what  could  not 
have  been  prevented  by  common  and  ordinary  prudence, 
and  not  "what  might  have  been  avoided  by  possible  or 
extraordinary  exertions."  6 

1  Davis'  International  Law,  pp.  310,  311;    G.  O.  100,  War  Dept., 
A.  G.  O.,  1863,  Sec.  45;  Field  Service  Regulations,  U.  S.  Army,  1905. 

2  Sec.  5313,  R.  S. 

3  Constitution,  U.  S.,  Art.  IV,  Sec.  3,  Clause  2. 

4  Constitution,  U.  S.,  Art.  I,  Sec.  8,  Clause  11. 

5  Dig.  Op.  J.  A.  G.,  p.  7;  Sec.  5313,  R.  S. 

6  Samuel,  Mil.  Law,  p.  538. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     335 

718.  Art.    11.     Every  officer  commanding  a  regiment  or  an 
independent  troop,  battery,  or  company,  not  in  the  field,  may, 
when  actually  quartered  with  such  command,  grant  furloughs  to 
the  enlisted  men,  in  such  numbers  and  for  such  time  as  he  shall 
deem   consistent   with   the   good   of   the   service.     Every  officer 
commanding  a  regiment,  or  an   independent  troop,   battery,  or 
company,  in  the  field,  may  grant  furloughs  not  exceeding  thirty 
days  at  one  time,  to  five  per  centum  of  the  enlisted  men,  for  good 
conduct  in  the  line  of  duty,  but  subject  to  the  approval  of  the 
commander  of  the  forces  of  which  said  enlisted  men  form  a  part. 
Every  company  officer  of  a  regiment,  commanding  any  troop, 
battery,  or  company  not  in  the  field,  or  commanding  in  any  garri= 
son,  fort,  post,  or  barrack,  may,  in  the  absence  of  his  field  officer, 
grant  furloughs  to  the  enlisted  men,  for  a  time  not  exceeding 
twenty  days  in  six  months,  and  not  to  more  than  two  persons  to 
be  absent  at  the  same  time. 

This  Article  prevents  the  absence  of  enlisted  men  for  any 
undue  period  of  time,  or  in  large  numbers,  and  tends  to 
preserve  the  command  at  all  times  in  a  condition  of  effi- 
ciency as  to  its  enlisted  personnel. 

719.  Art.   12.     At  every  muster  of  a  regiment,  troop,  battery, 
or  company,  the  commanding  officer  thereof  shall  give  to  the 
mustering  officer  certificates,  signed  by  himself,  stating  how  long 
absent  officers  have  been  absent  and  the  reasons  of  their  absence. 
And  the  commanding  officer  of  every  troop,  battery,  or  com- 
pany shall  give  like  certificates,  stating  how  long  absent  non- 
commissioned   officers    and    private    soldiers    have    been    absent 
and   the   reasons  of  their  absence.     Such   reasons  and  time  of 
absence  shall  be  inserted  in  the  muster  rolls  opposite  the  names 
of  the  respective  absent  officers  and  soldiers,  and  the  certificates, 
together  with  the  muster  rolls,  shall  be  transmitted  by  the  mus- 
tering officer  to  the  Department  of  War,  as  speedily  as  the  dis- 
tance of  the  place  and  muster  will  admit. 

The  provisions  of  this  Article  are  merely  directory  and 
not  penal.  It  is  introductory  to  the  Article  following,  which 
makes  the  signing  of  a  false  certificate  a  specific  military 
offense.1 

720.  Art.   13.     Every  officer  who  signs  a  false  certificate,  re- 
lating to  the  absence  or  pay  of  an  officer  or  soldier,  shall  be  dis- 
missed from  the  service. 

1  Winthrop,  Vol.  1,  p.  799- 


336  MILITARY  LAW 

This  Article  is  distinguished  from  those  relating  to  "  false 
muster,"  in  that  it  does  not  require,  to  constitute  the 
offense,  that  the  officer  shall  knowingly  sign  the  false  cer- 
tificate, but  only  that  the  certificate  shall  be  false  in  fact.1 
A  trivial  error  made  in  a  report  should  not,  in  the  absence 
of  fraud  or  bad  faith,  be  made  a  ground  for  a  charge 
under  this  Article,2  and  the  mere  signing  by  an  officer  of 
a  voucher  for  his  pay,  before  the  last  day  of  the  month 
for  which  it  was  due,  does  not  constitute  an  offense  of  the 
class  intended  to  be  made  punishable  by  it.3 

721.  Art.   14.     Any  officer  who  knowingly  makes  a  false  mus- 
ter of  man  or  horse,  or  who  signs,  or  directs,  or  allows  the  signing 
of  any  muster  roll,  knowing  the  same  to  contain  a  false  muster, 
shall,  upon  proof  thereof  by  two  witnesses,  before  a  court=martial, 
be  dismissed  from  the  service,  and  shall  thereby  be  disabled  to 
hold  any  office  or  employment  in  the  service  of  the  United  States. 

Under  this  Article  proof  must  be  made  by  the  evidence 
of  at  least  two  witnesses.  The  disqualification  to  hold 
office  prescribed  therein  follows  as  a  legal  consequence  of 
conviction  and  the  punishment  of  dismissal,  and  need  not 
be  specifically  adjudged  in  the  sentence.4 

722.  Art.   15.     Any  officer  who,  wilfully  or   through  neglect, 
suffers  to  be  lost,  spoiled,  or  damaged,  any  military  stores  be= 
longing  to  the  United  States,  shall  make  good  the  loss  or  damage 
and  be  dismissed  from  the  service. 

The  gist  of  the  offense  under  this  Article  is  the  loss,  spoil- 
ing of,  or  damage  to,  military  stores  of  the  United  States 
"wilfully"  or  "through  neglect."  The  "neglect"  herein 
indicated  is  not  ordinary  neglect  such  as  would  be  charged 
under  the  62d  Article  of  War,  but  a  gross  neglect  assimi- 
lated to  a  wilful  act,  as  the  non-observance  of  special 
instructions  or  general  regulations  in  reference  to  the 
custody  or  disposal  of  the  things  in  charge,  or  in  contempt 

1  Winthrop,  Vol.  1,  pp.  799,  800;  Samuel,  p.  298. 

2  See  Manual  Mil.  Law,  War  Office,  England,  1894,  p.  366. 

3  Dig.  Op.  J.  A.  G.  4. 

*  Winthrop's  Abr  Mil.  Law,  p.  228. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    337 

of  usage  and  customs  of  office,  in  the  discharge  of  which 
the  trust  arises,  in  respect  to  the  particular  charge,  etc. 
The  neglect,  to  constitute  a  crime  under  this  Article,  mus-t 
have  more  than  a  negative  quality  about  it.1  "The  wilful 
or  neglectful  sufferance  specified  by  the  Article  may 
consist  in  a  deliberate  violation  or  positive  disregard  of 
some  specific  injunction  of  law,  regulations,  or  orders;  or 
it  may  be  evidenced  by  such  circumstances  as  a  reckless 
or  unwarranted  personal  use  of  the  property;  causing  or 
allowing  it  to  remain  exposed  to  the  weather,  insecurely 
housed,  or  not  guarded;  permitting  it  to  be  consumed, 
wasted  or  injured  by  other  persons;  loaning  it  to  an  irre- 
sponsible person  by  whom  it  is  damaged,  etc."  2 

While  in  trial  by  court-martial  the  sentence  might  im- 
pose a  forfeiture,  of  the  amount  of  pay  sufficient  to  make 
good  the  loss  or  damage,  yet,  in  the  absence  of  any  such 
forfeiture  specified  in  the  sentence,  it  would  be  legal  and 
regular  to  "stop"  the  proper  sum  against  the  officer's  pay. 
The  correct  form  would  be  for  the  court  to  estimate  the 
value  of  the  stores  lost  to  be  a  certain  specified  amount 
and  then  make  the  stoppage  in  accordance  therewith.3 

723.  Art.   16.     Any   enlisted    man   who    sells,    or   wilfully   or 
through  neglect  wastes  the  ammunition  delivered  out  to   him, 
shall  be  punished  as  a  court-martial  may  direct. 

The  "waste"  contemplated  is  failure  to  take  care  of 
ammunition  issued,  losing  it,  allowing  it  to  be  damaged, 
reckless  expenditure  in  firings,  giving  it  away,  etc.4 

724.  Art.   17.     Any  soldier  who  sells,  or  through  neglect  loses 
or  spoils   his  horse,    arms,  clothing,  or  accoutrements  shall  be 
punished  as  a  court=martial  may  adjudge,  subject  to  such  limi- 
tation as  may  be   prescribed  by  the  President  by  virtue  of  the 
power  vested  in  him.5 

1  Samuel,  Mil.  Law,  pp.  516,  517;  Winthrop,  Vol.  1,  p.  792. 

2  Winthrop,  Vol.  1,  pp.  792,  793.     See  G.  C.  M.  O.  85,  H.  Q.  A.,  1882. 

3  Id.  793. 

4  Id.  794. 

•See  Act  July  27,  1892,  G.  O.  57,  A.  G.  O.,  1892. 


338  MILITARY  LAW 

The  President  has  designated  limits  of  punishment  under 
this  Article  in  his  Executive  Order  of  June  12,  1905.1 

There  are  three  distinct  and  separate  offenses  punish- 
able under  this  Article/ viz.,  "selling,"  "through  neglect 
losing/'  and  "spoiling";  and  any  charge  drawn  must  be 
with  a  specification  for  the  distinct  offense  committed. 
When  there  is  doubt  as  to  which  will  be  established  by 
the  testimony,  the  act  may  be  charged  under  two  or  more 
forms,  and  the  accused  is  not  entitled  to  call  upon  the 
prosecution  to  elect  under  which  charge  it  will  proceed 
in  such  case.2  The  charge  cannot  be  drawn  in  the  alterna- 
tive form,  as  "did  sell  or  through  neglect  lose."  3 

"Clothing  issued  and  charged  to  a  soldier  is  not  now 
(as  formerly)  regarded  as  remaining  the  property  of  the 
United  States.  It  is  considered  as  becoming,  upon  issue, 
the  property  of  the  soldier,  although  his  use  of  it  is,  for 
purposes  of  discipline,  qualified  and  restricted.  Thus  he 
commits  a  military  offense  by  disposing  of  it  as  specified 
in  this  Article,  though  the  United  States  may  suffer  no 
loss."  4 

But  it  is  now  held  that  the  clothing  so  issued  to  a  soldier, 
while  in  the  military  service,  remains  the  property  of  the 
United  States,  within  the  meaning  of  Section  5438,  Revised 
Statutes  of  the  United  States,  which  provides  for  the  pun- 
ishment of  every  person  who  knowingly  purchases  or 
receives  it  in  pledge  contrary  to  the  provisions  thereof.5 

"The  present  17th  Article  (as  amended  by  the  Act  of 
July  27,  1892)  does  not  authorize  a  stoppage  or  forfeiture 
of  pay  to  re-imburse  the  United  States."  6  "The  court- 
martial  under  this  Article  simply  imposes  punishment; 
it  does  not  pass  upon  the  question  of  pecuniary  responsi- 
bility." 7 

1  See  G.  O.  96,  War  Dept.,  1905.  5  U.  S.  v.   Hart,  146  Fed. 

2  See  Court-martial  Manual,  p.  19.  Rep.  202. 

*  See  ante,  par.  119.  6  Dig.  Op.  J.  A.  G.  12. 

4  Dig.  Op.  J.  A.  G.  11.  7  Id.  5. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     339 

As  an  enlisted  man  cannot  assign  the  wages  he  earns  and 
receives  from  the  United  States,  as  a  soldier,  until  his  dis- 
charge, so  he  cannot  exercise  any  such  right  over  his 
clothing,  which  he  receives  from  the  same  source  and  for 
the  same  service. 

The  purpose  of  the  issue,  and  the  condition  upon  which 
clothing  is  issued  to  a  soldier,  is  that  it  is  to  be  used  by 
him  in  the  service  of  the  United  States,  and  he  is  pro- 
hibited, by  this  Article  and  by  other  provisions  of  law,1 
from  selling,  or  through  neglect  losing  or  spoiling,  ex- 
changing, pledging,  loaning,  or  giving  away  clothing,  arms, 
or  accoutrements  so  furnished  him. 

The  United  States  has,  therefore,  a  qualified  right  in; 
and  title  to,  clothing  issued  for  the  use  of  a  soldier  which 
will  justify  the  seizure  thereof  when  found  in  the  illegal 
possession  of  a  third  person,  under  the  provisions  of  the 
statutes  mentioned.  All  persons  are  presumed  to  know 
the  law  and  to  be  aware  of  the  fact  that  the  sale  by  a 
soldier  of  the  clothing  issued  to  him  by  the  United  States, 
to  be  worn  in  its  service,  is  forbidden,  and,  therefore,  that 
its  purchase  is  unlawful. 

When  the  soldier  is  discharged,  however,  the  contract 
with  the  United  States  ends,  and  with  it  ceases  all  interest 
of  the  United  States  in  the  uniform  clothing  legally  in 
possession  of  the  soldier  at  his  discharge.2  As  a  citizen 
he  may  sell  that  which  belongs  to  him;  as  a  soldier  he  is 
prohibited  by  law  from  selling  articles  issued  to  him  for 
use  in  the  service. 

Section  5438,  Revised  Statutes,  provides  for  the  punish- 
ment of  every  person  who  "  knowingly  purchases  or  receives 
in  pledge  for  any  obligation  or  indebtedness  from  any  sol- 
dier, officer,  sailor,  or  other  person  called  into  or  employed 
in  the  military  or  naval  service  any  arms,  equipments, 
ammunition,  clothes,  military  stores,  or  other  public 

1  Sec.  1242,  R.  S.  2  Dig.  Op.  J.  A.  G.  2276. 


340  MILITARY  LAW 

property,  such  soldier,  sailor,  officer,  or  other  person  not 
having  the  lawful  right  to  pledge  or  sell  the  same,  and  every 
person  so  offending  in  any  of  the  matters  set  forth  in  this 
section  shall  be  imprisoned  at  hard  labor  for  not  less  than 
one  nor  more  than  five  years,  or  fined  not  less  than  one 
thousand  nor  more  than  five  thousand  dollars";  and 
Section  3490  provides  that  "Any  person  not  in  the  mili- 
tary or  naval  forces  of  the  United  States,  or  in  the  militia 
called  into  or  actually  employed  in  the  service  of  the 
United  States,  who  shall  do  or  permit  any  of  the  acts  pro- 
hibited by  any  of  the  provisions  of  Section  5438  (Revised 
Statutes),  shall  forfeit  and  pay  to  the  United  States 
the  sum  of  two  thousand  dollars,  and,  in  addition,  double 
the  amount  of  damages  which  the  United  States  may  have 
sustained  by  reason  of  the  doing  or  committing  such  act, 
together  with  the  costs  of  suit;  and  such  forfeiture  and 
damages  shall  be  sued  for  in  the  same  suit.'7 

In  view  of  the  qualified  interest  possessed  by  the  United 
States  in  clothing  issued  to  soldiers  for  their  use  in  the 
service,  it  is  held  that  sufficient  title  remains  to  the  United 
States  to  warrant  prosecution  under  this  section  (5438) 
and  the  punishment  of  the  illegal  purchaser.1 

There  is  an  undoubted  right  to  seize  such  articles  under 
the  provision  of  Sections  1242  and  3748,  Revised  Statutes, 
because  of  the  qualified  interest  still  held  by  the  United 
States,  and  the  same  interest  will  justify  prosecution  for 
illegal  purchase,  or  receiving  in  pledge,  these  same  articles, 
so  unlawfully  obtained,  under  the  terms  of  Section  5438, 
Revised  Statutes.2 

While  an  officer  has  the  legal  right  to  summarily  seize 
"clothing,  arms,  and  accoutrements"  furnished  by  the 
United  States  to  any  soldier,  which  he  may  find  in  the 

1  Op.  J.  A.  G.,  Oct.  14,  1905,  No.  16107;   U.  S.  v.  Hart,  146  Fed. 
Rep.  202. 

2  Id.;  case  of  U.  S.  v.  Chas.  W.  Durrah  and  George  Dixon;  and  of 
U.  S.  v.  Haase,  U.  S.  Court,  Eastern  Dist.  of  Kentucky,  1905. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     341 

possession  of  persons  not  soldiers  or  officers  of  the  United 
States,  under  authority  of  Sections  1242  and  3748,  Re- 
vised Statutes,  this  right  of  seizure  is  limited  to  any 
"officer,"  civil  or  military,  and  in  exercising  the  right 
he  must  act  upon  sufficient  and  satisfactory  knowledge, 
and  have  the  evidence  sufficient  to  justify  his  act  in  case 
of  prosecution  in  a  civil  court;  he  must  seize  the  prop- 
erty himself,  using  only  necessary  and  justifiable  force 
for  the  purpose.  When  he  enters  the  premises  of  the 
party  he  should  state  the  object  of  the  visit  and  demand 
the  property;  if  refused  he  may  use  only  the  force  neces- 
sary to  take  the  property.  The  officer  may  proceed  by 
obtaining  a  warrant  for  the  arrest  of  the  person,  and, 
where  premises  are  to  be  entered,  by  obtaining  a  search 
warrant,  as  he  thereby  acts  under  civil  authority,  in 
accordance  with  it,  and  protects  himself  from  any  undue 
prosecution.1 

Section  3748,  Revised  Statutes,  prescribes  that  "the 
possession  of  any  such  clothes,  arms,  military  outfits,  or 
accoutrements  by  any  person  not  a  soldier  or  officer  of 
the  United  States,  shall  be  presumptive  evidence  of  such 
a  sale,  barter,  exchange,  pledge,  loan,  or  gift,"  prohibited 
by  this  statute. 

The  burden  of  proof  that  such  article  came  lawfully 
into  his  possession  lies  upon  the  possessor,  and  so  long 
as  the  officer  acts  within  the  scope  of  his  authority  he 
cannot  be  held  to  answer  therefor  under  the  criminal 
laws  of  the  State,  and  if  he  should  be  held  in  custody  by 
the  process  of  a  State  court  for  such  an  act  he  may  be 
released  therefrom  through  the  action  of  the  United 
States  courts.2 

For  an  act  which  is  in  excess  of  his  authority  he  may 
be  sued  in  the  State  courts  by  any  person  injured  by 

1  For  method  of  procedure  in  obtaining  a  warrant,  see  post,  par.  839. 

2  In  re  Fair,  100  Fed.  Rep.  149. 


342  MILITARY  LAW 

reason  thereof;  but  when  the  act  is  done  in  good  faith 
and  without  malice,  the  officer  is  not  liable  to  criminal 
prosecution  in  such  courts.1 

MISCONDUCT  OF   OFFICERS   OR   SOLDIERS 

725.  Art.   18.     Any  officer  commanding  in  any  garrison,  fort, 
or  barracks  of  the  United  States  who,  for  his  private  advantage, 
lays  any  duty  or  imposition  upon,  or  is  interested  in,  the  sale  of 
any  victuals,   liquors,  or  other  necessaries  of  life,  brought  into 
such  garrison,  fort,  or  barracks,  for  the  use  of  the  soldiers,  shall 
be  dismissed  from  the  service. 

This  Article  is  intended  to  prevent  officers  from  receiv- 
ing personal  benefits  from  the  sales  of  articles  brought 
into  the  garrison  for  the  use  of  soldiers,  and  prohibits 
any  interest  therein,  whether  through  a  partnership  with 
the  vendor,  or  by  receipt  of  any  percentage  from  sales, 
and  from,  in  any  manner,  directly  or  indirectly,  profiting 
therefrom. 

726.  Art.    19.     Any  officer  who  uses  contemptuous  or  disre= 
spectful    words    against    the    President,    the    Vice=President,    the 
Congress  of  the  United  States,  or  the  chief  magistrate  or  legis= 
lature  of  any  of  the  United  States  in  which  he  is  quartered,  shall 
be  dismissed  from  the  service,  or  otherwise  punished,  as  a  court= 
martial  may  direct.     Any  soldier  who  so  offends  shall  be  punished 
as  a  court=martial  may  direct. 

This  Article  is  intended  to  enforce  respect  for  the  gov- 
erning authorities  of  the  United  States,  and  of  the  State 
in  which  any  officer  or  soldier  is  stationed.  To  speak 
contemptuous  words  of  the  President  would  also  be  a 
most  serious  crime,  as  he  is  the  Commander-in-Chief  of  the 
Army,  and  all  officers  and  soldiers  are  subject  to  his  orders. 
As  the  Vice- President  will  succeed  to  the  office  of  President 
in  case  of  the  death  or  disability  of  the  latter,  and  as  Con- 
gress makes  the  laws  which  govern  the  Nation  and  the 
Army,  any  contemptuous  or  disrespectful  words  against 
them,  either  by  officers  or  soldiers,  are  hereby  prohibited. 
The  civil  authority  being  supreme  in  time  of  peace,  its 
1  In  re  Fair,  100  Fed.  Rep.  149. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     343 

proper  representatives  are  entitled  to  respect,  and  it  would 
be  very  improper  and  wrong  for  any  person  in  the  military 
service  of  the  United  States,  when  in  any  State,  to  use 
contemptuous  or  disrespectful  language  toward  its  chief 
magistrate  or  its  legislature;  it  being  the  duty  of  the 
Executive  Department  of  the  government  to  which  the 
Army  belongs  to  sustain  State  authority  and  aid  it  in  the 
enforcement  of  the  law  when  necessary,  and  properly  called 
upon,  as  provided  by  the  Constitution  and  laws,  so  to  do. 
In  those  cases  which  have  come  to  trial  under  this 
Article  the  charge  has  usually  been  against  an  officer  for 
use  of  "  contemptuous  or  disrespectful  words  against  the 
President,"  or  the  government  as  represented  by  him. 
"The  deliberate  employment  of  denunciatory  or  contume- 
lious language  in  regard  to  the  President,  whether  spoken 
in  public,  or  published,  or  conveyed  in  a  communication 
designed  to  be  made  public,  has,  in  repeated  cases,  been 
made  the  subject  of  charges  and  trial  under  this  Article; 
and  where  taking  the  form  of  a  hostile  arraignment,  by 
an  officer,  of  the  President  or  his  administration,  for  the 
measures  adopted  in  carrying  on  the  civil  war, — a  juncture 
where  a  peculiar  obedience  and  discipline  were  due,  on 
the  part  of  the  subordinate,  to  the  President  as  Executive 
and  Commander-in-Chief, — it  was,  in  general,  punished  by 
dismissal."  On  the  other  hand,  it  was  held  that  adverse 
criticisms  of  the  acts  of  the  President,  occurring  in  "politi- 
cal discussions,"  and  which,  though  characterized  by  in- 
temperate language,  were  not  apparently  intended  to  be 
disrespectful  to  the  President  personally,  or  to  his  office, 
or  to  excite  animosity  against  him,  were  not  in  general  to 
be  regarded  as  properly  exposing  officers  or  soldiers  to 
trial  under  this  Article.  To  seek  for  ground  of  offense 
in  'such  discussions  would  ordinarily  be  inquisitorial  and 
beneath  the  dignity  of  the  Government.1 
Dig.  Op.  J.  A.  G.  13. 


344  MILITARY  LAW 

727.  Art.  20.     Any    officer    or    soldier    who    behaves    himself 
with  disrespect  toward  his  commanding  officer  shall  be  punished 
as  a  court=martial  may  direct. 

"The  commanding  officer  of  an  officer  or  soldier,  in  the 
sense  of  this  Article,  is  properly  the  superior  who,  in  the 
exercise  of  his  command,  is  authorized  to  secure  obedience 
to  his  orders  from  such  officer  or  soldier."  1  The  Article 
does  not  apply  to  language  used  toward  an  officer  who  is 
at  the  time  temporarily  detached  and  not  in  actual  com- 
mand of  the  accused.  Such  an  offense  would  be  charge- 
able under  the  62d  Article  of  War.2 

The  disrespect  toward  the  commanding  officer  may  be 
exhibited  in  a  variety  of  ways,  as  by  neglecting  the  cus- 
tomary salute,  by  marked  disdain,  indifference,  insolence, 
impertinence,  undue  familiarity,  or  other  rudeness  in  his 
presence,  or  by  a  systematic  or  habitual  disregard  of,  or 
delay  to  comply  with,  his  orders  or  directions,  or  by 
issuing  counter-orders,  by  committing  an  assault  not 
amounting  to  a  breach  of  the  21st  Article,  etc.,  or  it  may 
consist  in  acts  or  language  directed  at  the  commander  in 
his  official  or  military  character,  or"  personally.3  "The 
particular  acts  or  words  relied  upon  as  constituting  the 
offense  should  properly  be  set  forth  in  substance  in  the 
specification."  4 

It  is  not  essential  that  such  disrespect  be  intentional. 
If  publicly  committed  the  offense  is  the  more  aggravated. 
It  is  no  defense  that  the  accused  stated  only  facts  or  that 
he  said  no  more  than  was  deserved  by  the  superior.5  "A 
want  of  civility  is  equally  punishable  with  an  act  of  pre- 
meditated disrespect."  6 

728.  Art.  21.     Any  officer  or  soldier  who,   on   any  pretense 
whatsoever,  strikes  his  superior  officer,  or  draws  or  lifts  up  any 
weapon,  or  offers  any  violence  against  him,  being  in  the  execu- 
tion of  his  office,  or  disobeys  any  lawful  command  of  his  superior 

1  Winthrop,  Vol.  1,  p.  807.  4  Dig.  Op.  J.  A.  G.  14. 

2  Dig.  Op.  J.  A.  G.  14.  5  Winthrop,  Vol.  1,  p.  806. 

3  Winthrop,  Vol.  1,  p.  805.  fl  Davis'  Mil.  Law,  p.  377. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    345 

officer,  shall  suffer  death,  or  such  other  punishment  as  a  court= 
martial  may  direct. 

This  Article  is  disciplinary  in  its  nature,  and  provides 
for  the  punishment  of  any  officer  or  soldier  who  strikes, 
lifts  up  any  weapon,  or  offers  any  violence  against  his 
superior  officer,  or  who  disobeys  any  lawful  command  of 
such  superior  who  is,  at  the  time,  "  in  the  execution  of 
his  office." 

The  act  of  striking,  etc.,  must  be  with  intent  to  commit 
violence,  and  not  be  accidental  or  unintentional,  intent 
being  an  essential  element  of  the  offense. 

"To  justify  a  conviction  of  the  capital  offense  of  offer- 
ing violence  against  a  superior  officer,  it  should  be  made 
to  appear  in  evidence  that  the  accused  knew  or  believed 
that  the  person  assaulted  was  in  fact  an  officer  in  the 
Army  and  was  his  superior  in  rank"; 1  and  also  that  the 
officer  assaulted  was  at  the  time  "in  the  execution  of  his 
office"; 2  "that  is  to  say,  in  the  performance  of  his  special 
functions,  or  of  any  duty  or  act  legal  and  appropriate  for 
an  officer  of  his  rank  or  office  to  perform."  3  The  superior 
officer  in  the  sense  of  this  Article  need  not  necessarily 
be  the  "commanding"  officer  of  the  accused  at  the  time 
of  the  offense. 

The  phrase  "being  in  the  execution  of  his  office"  is  in 
general  synonymous  with  "being  in  the  performance  of 
military  duty,"  and  describes  the  status  of  a  superior 
officer  who  is  engaged  in  the  execution  of  duties  pertain- 
ing to  his  station  or  office  in  the  military  establishment.4 

The  word  "officer"  in  the  term  "superior  officer" 
means  a  "commissioned  officer";  non-compliance  by  a 
soldier  with  an  order  emanating  from  a  non-commissioned 
officer,  or  offering  violence  to  him,  is  not  an  offense  under 
this  Article,  but  one  to  be  charged,  in  general,  under  the 

1  Dig.  Op.  J.  A.  G.  17.  3  Winthrop,  Abr.,  p.  230. 

2  Id.  18.  4  Davis'  Mil.  Law,  p.  388. 


346  MILITARY  LAW 

62d  Article,1  as  should,  also,  disobedience  of  an  order 
of  a  contract  surgeon,  of  a  dental  surgeon,  and  of  a  veter- 
inarian.2 

Threats  operate  to  aggravate  an  offense  of  assault  with 
which  they  are  associated  or  of  which  they  form  an 
essential  part.  Mere  abusive  words,  however,  not  ac- 
companied by  acts  indicating  intent  to  execute  them,  do 
not  constitute  an  offense  within  the  meaning  of  the  Article; 
nor  does  an  act  of  defense  of  one's  self,  wife,  child,  servant, 
or  property,  nor  an  act  of  obedience  to  legal  process  or 
military  order;  3  nor  the  quelling  of  a  disorder  under  the 
24th  Article  of  War.4 

But  where  the  language  is  threatening  or  menacing  in 
character,  and  coupled  with  a  present  capacity  to  carry  the 
threats  into  effect,  it  will,  if  accompanied  by  acts  indica- 
tive of  such  intention,  constitute  an  "  offer  of  violence," 
and  as  such  be  chargeable  under  this  Article.5 

Disobedience  of  Orders.6 — An  order  is  an  authoritative 
command,  whether  oral  or  written,  issued  by  competent 
military  authority  to  a  person  or  persons  subject  to  his 
direction  and  which,  if  legal,  they  are  bound  to  execute. 

"The  offense  of  disobedience  of  orders  contemplated 
in  this  Article  (21)  consists  in  a  wilful  refusal  or  neglect 
to  comply  with  a  specific  order  to  do  or  not  to  do  a  thing. 
A  mere  failure  to  perform  a  routine  duty  is  properly 
charged  under  the  62d  Article  of  War."  7  In  any  trial 
on  a  charge  drawn  under  this  Article  for  disobedience  of 
orders,  it  must  appear  from  the  evidence  that  the  order 
or  command  was  "lawful."  An  officer  or  soldier  is  not 
punishable  under  the  Article  for  disobeying  an  "unlawful" 

1Dig.  Op.  J.  A.  G.  21. 

2  Court-martial  Manual,  p.  102,  note. 

3  Davis'  Mil.  Law,  p.  388. 

4  Winthrop,  Vol.  1,  p.  811. 
6  Davis'  Mil.  Law,  p.  389. 

8  See  ante,  par.  286,  287. 
1  Dig.  Op.  J.  A.  G.  25. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    347 

order.  It  is  not  necessary  that  the  officer  giving  the 
command  be  in  uniform,  provided  his  rank  and  position 
as  an  officer  is  known.1 

"But  the  order  of  a  proper  superior  is  presumed  to  be 
lawful,  and  should  be  obeyed,  where  it  is  not  clearly  and 
obviously  in  contravention  of  law.  Unless  the  illegality 
is  unquestionable,  the  order  should  first  be  obeyed,  and 
redress,  if  entitled  to  any,  be  sought  afterwards.  A  mili- 
tary inferior  in  refusing  or  failing  to  comply  with  the 
order  of  a  superior  on  the  ground  that  the  same  is,  in  his 
opinion,  unlawful,  does  so,  of  course,  on  his  own  personal 
responsibility  and  at  his  own  risk."  2 

The  order  may  be  either  written  or  oral,  and  communi- 
cated or  delivered  by  the  superior  in  person  or  through  a 
third  party — as  a  staff  officer — orally  or  in  writing;  or  it 
may  be  conveyed  through  the  medium  of  General  or  Spe- 
cial Orders  of  the  command  or  of  the  War  Department.3 

Whenever  orders  are  issued  through  a  third  person,  as 
a  military  representative  of  the  superior,  it  should  be 
expressly  stated  in  the  body  of  the  communication  that 
they  are  issued  by  the  direction  of  the  proper  superior, 
or  the  words  "by  order  of"  or  "by  command  of"  the 
proper  superior  commander  (naming  him  and  his  com- 
mand) should  be  prefixed  to  the  signature.4  In  a  similar 
manner  a  verbal  order  given  in  the  name  of  a  superior 
should  state  that  it  is  given  by  his  order  or  direction. 
"Assuming  to  give  an  order  as  the  order  of  a  superior, 
who  has  not  in  fact  directed  it  to  be  given,  is  a  grave  mili- 
tary offense."  5 

"Where  an  order  is  conveyed  and  personally  delivered 
by  a  staff  officer,  aide-de-camp,  or  other  messenger,  to 

1  Simmons,  Sec.  175 

2  Dig.  Op.  J.  A.  G.  22,  23,  1853. 
'Winthrop,  Vol.  1,  p.  815. 

4  Id.,  p.  816;  see  A.  R.  784. 
1  Winthrop,  Vol.  1,  p.  816,  note. 


348  MILITARY  LAW 

render  the  recipient  liable  under  the  present  Article  if  he 
fail  to  obey  it,  it  is  essential  that  he  should  be  apprised 
that  the  bearer  in  fact  represents  the  superior  whose 
order  it  purports  to  be.  Where  not  previously  informed 
upon  this  point,  the  declaration  to  him  of  the  messenger 
that  he  is  the  staff  officer,  aide,  etc.,  of  the  superior,  or  that 
he  delivers  the  order  by  the  direction  of  such  superior,  is 
to  be  presumed  to  state  the  fact,  and  the  recipient  will 
not  only  be  justified  in  complying  with  the  order  thus 
conveyed,  but  will  be  liable  to  a  charge  under  the  present 
Article  if  he  does  not  comply."  1 

When  an  order  has  been  published  in  the  usual  manner 
of  making  such  orders  publicly  known,  as  by  reading  or 
posting  them,  knowledge  thereof  is  presumed,  and  the 
" burden  of  proof"  lies  upon  an  accused  to  show  that  he 
was  not  properly  notified  because  of  not  being  at  the  time 
of,  or  during,  its  publication  at  the  post  or  station  where 
published,  and,  therefore,  not  chargeable  with  neglect  or 
other  fault  in  not  knowing  its  contents. 

Disobedience  of  an  order  by  a  general  prisoner  should 
be  charged  under  the  62d  Article  of  War.2 

Obedience  of  orders,  legally  given,  may  be  pleaded  as 
a  defense.3 

729.  Art.  22.  Any  officer  or  soldier  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition,  in  any  troop,  battery, 
company,  party,  post,  detachment,  or  guard,  shall  suffer  death,  or 
such  other  punishment  as  a  court=martial  may  direct. 

The  offense  of  mutiny  is  not  defined  by  law,  but  the 
meaning  of  the  word  may  be  ascertained  from  the  de- 
cisions of  the  courts,4  and  the  works  of  writers  on  military 
law.  " Mutiny,  at  military  law,  maybe  defined  to  be  an 
unlawful  opposing  or  resisting  of  lawful  military  author- 

1  Winthrop,  Vol.  1,  p.  816. 

2  Court-martial  Manual,  p.  102,  note. 

3  See  ante,  par.  286-287. 

4  See  U.  S.  v.  Kelly,  11  Wheat.  (24  U.  S.)  418,  419. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    349 

ity  with  intent  to  subvert  the  same,  or  to  nullify  or  neu- 
tralize it  for  the  time."  l 

The  opposition  or  resistance  may  be  " passive"  as  well 
as  active,  and  be  shown  by  persistent  refusal  or  omission 
to  obey  orders,  with  the  intent  to  subvert  authority.2 

This  Article  evidently  contemplates  that  a  mutiny  shall 
have  been  consummated,  that  a  mutiny  "  complete  in 
law"  must  actually  have  existed,  to  authorize  the  trial  of 
an  offender  under  its  terms.  An  unsuccessful  attempt 
to  create  a  mutiny,  or  mutinuous  conduct,  should  be 
charged  under  the  62d  Article  of  War.3 

The  " beginning"  of  a  mutiny  is  an  overt  act,  and  the 
direct  employment  of  force  against  authority;  the  " ex- 
citing" is  the  calling  it  into  activity  by  use  of  words  or 
by  acts;  " causing"  is  to  bring  it  about  in  any  manner 
by  conduct  or  language,  and  would  include  instances  in 
which  the  offender  takes  no  personal  part  in  the  riotous 
demonstration,  but  confines  himself  to  stimulating  others 
to  opposition  or  resistance;  and  "joining"  is  the  offense 
of  taking  part  in  a  mutiny  at  any  stage  of  its  progress.4 

Mutiny  may  be  the  act  of  several  persons,  but  it  may 
originate  and  conclude  with  a  single  person; 5  and  it  is  the 
"intent"  which  distinguishes  it  from  those  offenses  pun- 
ishable under  Article  21,  or  which  are  to  be  charged  as 
"mutinous  conduct"  under  Article  62. 6 

It  requires  both  the  "act"  and  the  "intent"  to  con- 
stitute the  crime;  without  the  "intent"  necessary  to 
constitute  a  violation  of  this  Article,  acts  of  4j^subordina- 
tion  or  disorderly  conduct  on  the  part  of  an  officer  or 
soldier  should  be  charged  under  Article  20,  21,  or  62. 7 

1  Dig.  Op.  J.  A.  G.  31. 

2  Ives,  p.  244;   Winthrop,  Abr.,  p.  234. 
3Winthrop,  Vol.  1,  p.  829. 

4  Id.  827-828. 

5  Samuel,  p.  254;  De  Hart,  p.  348. 

6  Dig.  Op.  J.  A.  G.  31. 

7  Davis'  Mil.  Law,  pp.  390-391;  Winthrop,  Vol.  1,  p.  825. 


350  MILITARY  LAW 

The  " joining"  in  a  mutiny  constitutes  a  " conspiracy/' 
and,  under  the  common  law,  all  the  participators  are 
principals  and  each  is  alike  guilty  of  the  offense;  any  act 
or  declaration  of  one,  made  in  pursuance  of  the  common 
design,  is  the  act  or  declaration  of  every  other,  and,  the 
common  design  being  established,  all  things  done  to  pro- 
mote it  are  admissible  in  evidence  against  each  individual 
concerned.  In  such  cases,  where  the  mutiny  is  a  con- 
certed act,  the  charge  is  frequently  " joint";  all  or  the 
principal  of  the  offenders  being  charged  and  tried  together 
accordingly.1 

To  justify  trial  on  joint  charges  there  must  have  been 
concert  of  action  in  an  offense;  the  offense  must  be  such 
as  requires  for  its  commission  a  combination,  and  it  must 
have  been  committed  in  concert,  in  pursuance  of  a  com- 
mon intent.2 

By  " sedition"  is  meant  an  offense  by  acts  of  treason- 
able or  riotous  nature  directed  rather  against  the  public 
peace  and  the  civil  authority  than  against  military 
superiors,  though  necessarily  involving  or  resulting  in 
insubordination  to  military  authority.3 

The  crime  of  mutiny  or  sedition  must  be  proved  by  the 
acts  constituting  the  offense;  but  words  or  writings  form- 
ing a  part  of  the  res  gestce  are  admissible  in  evidence.4 

730.  Art.  23.  Any  officer  or  soldier  who,  being  present  at 
any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to  sup- 
press the  same,  or  having  knowledge  of  any  intended  mutiny  or 
sedition,  does  not,  without  delay,  give  information  thereof  to 
his  commanding  officer,  shall  suffer  death,  or  such  other  punish= 
ment  as  a  court=martial  may  direct. 

This  Article  is  intended  not  only  to  repress  a  mutiny 
or  sedition  already  existing,  but  to  forestall  it  and  prevent 

1  Winthrop,  Vol.  1,  pp.  828-829;  see  ante,  par.  581. 

2  Court-martial  Manual,  p.  17. 

3  Ives,  p.  244;   BenSt,  p.  258;   Simmons,  Sec.  170. 

4  Simmons,  Sec.  821-822. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  351 

its  outbreak  if  any  officer  or  soldier  has  knowledge  that 
it  is  intended.  It  requires  each  officer  or  soldier  to  "use 
his  utmost  endeavor"  for  its  suppression,  if  it  exists,  and 
these  words  justify  the  use  by  the  " officer  or  soldier"  of 
force  to  the  extent  necessary  to  quell  the  mutiny,  even, 
in  extreme  necessity,  to  using  a  deadly  weapon  and  the 
taking  of  human  life.  But  the  necessity  must  be  shown 
to  justify  such  act,  and  such  person  will  not  ordinarily  be 
warranted  in  so  doing  in  a  case  of  mutiny  unaccompanied 
by  violence,  or  where  less  vehement  methods  will  be  en- 
tirely effectual.1 

The  force  employed  in  quelling  the  mutiny  must  not 
exceed  the  strict  necessity  of  the  case,  such  as  is  necessary 
to  subdue  the  offenders  and  restore  order.2  The  "  giving 
of  information"  is  imperatively  required,  with  the  in- 
junction that  it  must  be  "  without  delay,"  and,  therefore, 
an  officer  or  soldier  is  not  permitted  to  exercise  his  dis- 
cretion as  to  whether  he  will  or  will  not  give  the  required 
information. 

To  sustain  the  charge  of  violation  of  this  Article  it  must 
be  averred  in  the  charge,  and  it  must  be  proved  by  the 
evidence,  that  an  actual  mutiny  existed,  or  an  intention 
to  commit  mutiny;  that  the  accused  was  present  at  the 
mutiny,  or  had  knowledge  that  one  was  intended;  that 
he  neglected  or  failed  to  use  proper  efforts  to  suppress  it, 
or  neglected  or  failed  to  give  to  his  commanding  officer, 
without  unreasonable  delay,  the  information  that  it  was 
intended.3 

731.  Art.  24.  All  officers,  of  what  condition  soever,  have 
power  to  part  and  quell  all  quarrels,  frays,  and  disorders,  whether 
among  persons  belonging  to  his  own  or  to  another  corps,  regi= 
ment,  troop,  battery,  or  company,  and  to  order  officers  into  arrest, 
and  non-commissioned  officers  and  soldiers  into  confinement, 

1  Winthrop,  Vol.  1,  pp.  831-832. 

2  Davis'  Mil.  Law,  p.  392. 

8  Winthrop,  Vol.  1,  p.  834. 


352  MILITARY  LAW 

who  take  part  in  the  same,  until  their  proper  superior  officer  is 
acquainted  therewith.  And  whosoever,  being  so  ordered,  refuses 
to  obey  such  officer  or  noncommissioned  officer,  or  draws  a 
weapon  upon  him,  shall  be  punished  as  a  court=martial  may 
direct. 

The  term  " officer"  as  used  in  this  Article  in  connection 
with  the  words  "of  what  condition  soever"  is  held  to  be  a 
modification  of  the  meaning  of  the  word  "officer"  as  de- 
fined in  Section  1342,  Revised  Statutes,  and  to  include 
non-commissioned  officers  as  well  as  "commissioned"  offi- 
cers.1 

An  inferior  should  not,  however,  assume  authority  to 
arrest  a  superior  in  the  presence  of  a  senior  in  rank,  unless 
that  senior  is  himself  concerned  or  conspicuously  recreant 
to  his  duty,  or  incapacitated  therefor.2 

The  power  given  in  this  Article  is  an  application  to  the 
military  service  of  the  common  law  principle  that  any 
bystander  may  interfere  to  preserve  the  peace  and  arrest 
an  affrayer  and  that  it  is  his  duty  so  to  do.3 

The  disorders  herein  intended,  however,  are  not  the 
common  law  disorders  incident  to  civil  life,  but  such 
particular  disorders  as  have  immediate  relation  to  quarrels 
and  frays  among  people  in  the  military  service,  affecting 
military  discipline,  and  which  demand  special  inter- 
ference and  the  authority  of  those  present  to  place  in 
arrest  or  confinement  those  engaged  therein  and  thereby 
prevent  the  continuance  of  the  quarrel,  fray,  or  disorder. 

The  person  so  arrested,  or  confined,  must  retain  that 
status  until  his  proper  superior  officer  is  made  acquainted 
therewith  and  has  taken  suitable  action  in  the  case. 

732.  Art.  25.  No  officer  or  soldier  shall  use  any  reproachful 
or  provoking  speeches  or  gestures  to  another.  Any  officer  who 
so  offends  shall  be  put  in  arrest.  Any  soldier  who  so  offends 
shall  be  confined,  and  required  to  ask  pardon  of  the  party  of- 
fended, in  the  presence  of  his  commanding  officer. 

1  Davis'  Mil.  Law,  p.  393;  Winthrop,  Vol.  1,  p.  836;  ante,  par.  94. 

2  Winthrop,  Vol.  1,  p.  837. 

3  Davis'  Mil.  Law,  p.  393,  note. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  353 

"This  Article  confers  no  jurisdiction  or  power  to  punish 
on  courts-martial,  but  merely  authorizes  the  taking  of 
certain  measures  of  prevention  and  restraint  by  command- 
ing officers;  that  is,  measures  preventive  of  serious  dis- 
orders such  as  are  indicated  in  the  two  Articles  relating  to 
duels."  1 

It  imposes  immediate  personal  restraint  upon  the  parties 
at  the  very  beginning  of  difference  between  them  and  pro- 
vides a  means  of  settlement  of  the  difference  through  the 
power  and  authority  of  the  commanding  officer. 

The  limit  of  the  period  of  arrest  or  confinement  is  not 
stated,  and  the  commanding  officer  may,  therefore,  continue 
it  either  until  the  matter  is  settled  between  the  parties  by 
suitable  apology  or  reparation  in  a  way  not  offending  the 
honor  or  self-respect  of  either  party.2 

The  provisions  of  the  Article  enjoining  the  asking  of 
pardon,  etc.,  are  rarely  resorted  to;  the  usual  practice 
being  to  prefer  charges  with  a  view  to  the  punishment  of 
the  offender,  as  in  case  of  any  other  offense.3 

733.  Art.  26.  No  officer  or  soldier  shall  send  a  challenge  to 
another  officer  or  soldier  to  fight  a  duel,  or  accept  a  challenge 
so  sent.  Any  officer  who  so  offends  shall  be  dismissed  from 
the  service.  Any  soldier  who  so  offends  shall  suffer  such  punish~ 
ment  as  a  court=martial  may  direct. 

This  and  the  two  following  Articles,  which  prohibit  duel- 
ling in  the  Army,  are  intended  to  provide  for  the  punish- 
ment of  each  and  every  person  connected  therewith,  in 
any  way,  actively  or  by  tacit  assent. 

The  "engaging  in  a  duel,"  the  actual  act  of  fighting 
itself,  not  being  made  punishable  as  a  specific  military 
offense  by  the  Articles  of  War,  would,  in  general,  be  charge- 
able under  Article  62 4  and,  therefore,  be  an  additional 

1  Dig.  Op.  J.  A.  G.  34. 

2  Samuel,  pp.  366-372. 

8  Winthrop,  Vol.  1,  p.  839. 
4  Dig.  Op.  J.  A.  G.  35,  note  4. 


354  MILITARY  LAW 

charge  to  any  charge  made  under  Articles  25  to  28,  inclu- 
sive. 

A  duel  is  a  concerted  fight  between  two  persons  with 
deadly  weapons,  at  an  appointed  time  and  place,  upon  a 
precedent  quarrel.  It  differs  from  an  affray  in  this,  that 
the  latter  occurs  in  a  sudden  quarrel,  while  the  former 
is  always  the  result  of  design.1 

Duelling  is  forbidden  by  the  common  and  the  statute 
laws  as  well  as  by  the  moral  code.  Cool  and  deliberate 
homicide  in  a  duel  is  murder  in  the  guilty  party  what- 
ever the  provocation;  and  not  only  the  principals  but  the 
seconds  also,  in  a  deliberate  duel,  are  guilty  of  homicide.2 

The  fighting  of  a  duel,  even  if  there  be  no  fatal  result, 
is  of  itself  a  misdemeanor  at  common  law,  and  all  who  are 
present  and  abetting  are  likewise  guilty.3  The  challenging 
of  another  to  fight  a  duel,  the  bearing  of  such  challenge, 
or  the  provoking  another  to  send  a  challenge,  are  mis- 
demeanors likewise;  no  actual  fighting  is  necessary  to  con- 
stitute these  crimes.4 

A  " challenge"  is  a  request  by  one  person  to  another  to 
fight  a  duel.  No  particular  form  of  words  is  necessary  to 
constitute  a  challenge,  and  it  may  be  either  oral  or  written.5 
The  invitation  to  fight  need  not  be  tendered  in  direct  and 
express  terms;  it  is  sufficient  if  it  be  conveyed  indirectly 
and  by  implication.  The  " intention"  of  the  language  em- 
ployed is  the  material  point.6 

Where  the  invitation  is  ambiguously  or  obscurely  worded, 
or  contains  technical  terms,  it  may  be  explained  by  refer- 
ence to  the  so-called  duelling  code,  or  by  the  circumstances 
of  the  controversy  and  the  acts,  conversations,  corre- 
spondence, etc.,  of  the  parties  as  exhibited  in  evidence; 

1  Bouvier,  Law  Dict'y;  Wharton,  Cr.  Law,  Sec.  1767-1770. 

2  Wharton,  Cr.  Law,  Sec.  482-483. 

3  Id.;  Clark,  Cr.  Law,  Sec.  149. 

4  Bishop,  New  Cr.  Law,  Vol.  1,  Sec.  312;  Clark,  Cr.  Law,  Sec.  149. 

5  Bouvier,  Law  Dict'y;  Bishop,  New  Cr.  Law,  Vol.  1,  Sec.  314, 

6  Winthrop,  Vol.  1,  p.  843. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     355 

and,  in  like  manner,  no  form  of  words  is  necessary  to  con- 
stitute an  acceptance,  it  being  sufficient  that  they  con- 
stitute evidence  of  intent  to  accept  the  invitation  to  fight. 
The  "sending"  and  the  " accepting"  of  a  challenge  are 
equally  punishable.  The  " sending"  of  the  challenge  is 
an  offense;  whether  it  reaches  the  person  to  whom  it  is 
sent  or  not  is  immaterial;  nor  is  it  necessary  to  show  that 
the  challenge,  if  received,  was  ever  accepted  or  declined 
by  the  person  to  whom  sent.1 

734.  Art.  27.  Any  officer  or  noncommissioned  officer,  com- 
manding a  guard,  who,  knowingly  and  willingly,  suffers  any 
person  to  go  forth  to  fight  a  duel,  shall  be  punished  as  a  challenger; 
and  all  seconds  or  promoters  of  duels,  and  carriers  of  challenges 
to  fight  duels,  shall  be  deemed  principals,  and  punished  accord- 
ingly.  It  shall  be  the  duty  of  any  officer  commanding  an  army, 
regiment,  troop,  battery,  company,  post,  or  detachment,  who 
knows  or  has  reason  to  believe  that  a  challenge  has  been  given  or 
accepted  by  any  officer  or  enlisted  man  under  his  command, 
immediately  to  arrest  the  offender  and  bring  him  to  trial. 

This  Article  makes  any  commander  of  a  guard  who 
knowingly  or  willingly  suffers  any  person  to  go  forth  to 
fight  a  duel,  and  all  persons  acting  as  seconds  or  promoters 
of  duels,  equally  responsible  with  the  principals  and  pun- 
ishable accordingly.  It  also  requires  every  commanding 
officer  who  knows,  or  has  reason  to  believe,  that  a  challenge 
has  been  given  or  accepted  by  any  officer  or  soldier,  to 
arrest  the  offender  and  bring  him  to  trial.  The  object  of 
these  requirements,  and  the  severe  penalties  attached  to  a 
violation  of  this  Article,  are  intended  to  prevent  all  duel- 
ling, as  being  contrary  to  law  as  well  as  opposed  to  moral- 
ity and  to  discipline. 

In  order  to  convict  the  officer  or  non-commissioned 
officer  "  commanding  a  guard,"  it  is  necessary  to  show  his 
knowledge  of  the  fact  that  the  going  forth  was  for  the 
purpose  of  fighting  a  duel. 

1  Bishop,  Cr.  Proc.,  Vol.  2,  Sec.  307. 


356  MILITARY  LA\? 

The  " carrier"  of  a  challenge  must  also  have  had  knowl- 
edge of  the  character  of  the  message;  so  an  ordinary 
mail-carrier  would  not  be  responsible. 

735.  Art.  28.     Any   officer   or   soldier   who   upbraids   another 
officer  or  soldier  for  refusing  a  challenge  shall  himself  be  pun= 
ished  as  a  challenger;    and  all  officers  and  soldiers  are  hereby 
discharged  from  any  disgrace  or  opinion  of  disadvantage  which 
might  arise  from  their  having  refused  to  accept  challenges,  as 
they  will  only  have  acted  in  obedience  to  the  law,  and  have  done 
their  duty  as  good  soldiers,  who  subject  themselves  to  discipline. 

The  28th  Article  is  intended  to  enforce  upon  each  per- 
son concerned  the  duty  of  obedience  to  the  law,  and  an 
understanding  of  the  fact  that  every  person  will  be  sus- 
tained in  doing  so  and  not  be  upbraided;  that  whoever 
upbraids  another  for  refusing  a  challenge  is  himself  a 
violator  of  law  to  be  punished  as  a  challenger. 

The  whole  theory  of  the  duel  is  opposed  to  all  our  law, 
municipal  and  moral,  and  is  a  relic  of  barbarism  from  a 
time  when  differences  were  settled  by  brute  strength.  Its 
object  is  to  take  into  one's  own  hands  the  punishment  of 
actual  or  supposed  individual  injuries,  rather  than  to  sub- 
mit them  to  the  judgment  of  one's  peers,  or  to  legal  superior 
authority.  It  is,  therefore,  contrary  to  the  Anglo-Saxon 
theory  of  justice  and  right  as  developed  since  feudal 
times,  and  has  substantially  disappeared  among  English- 
speaking  and  law-abiding  people. 

REPARATION  OF  WRONGS 

736.  Art.  29.     Any   officer   who   thinks   himself   wronged    by 
the  commanding  officer  of  his  regiment,  and,  upon  due  applica- 
tion to  such  commander,  is  refused  redress,  may  complain  to  the 
general  commanding  in  the  State  or  Territory  where  such  regi= 
ment  is  stationed.     The  general  shall  examine  into  said  complaint 
and  take  proper  measures  for  redressing  the  wrong  complained 
of ;  and  he  shall,  as  soon  as  possible,  transmit  to  the  Department 
of  War  a  true  statement  of  such  complaint,  with  the  proceed" 
ings  had  thereon. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    357 

The  application  for  redress  being  refused,  the  complaint 
provided  for  should  be  forwarded  through  the  command- 
ing officer  of  the  regiment;  forwarding  it  direct  would  not 
be  justified  unless  such  commanding  officer  refuses  to 
forward  it  or  holds  it  back  unnecessarily  with  unreason- 
able delay.  If,  under  such  circumstances,  the  complaint 
is  forwarded  direct,  the  commanding  officer  should  be 
notified  by  the  officer  so  forwarding  it,  at  the  time  he 
does  so. 

"This  Article  is  expressly  limited  to  cases  of  alleged 
wrongs  on  the  part  of  regimental  commanders.  It  cannot 
be  extended  to  apply  to  a  complaint  of  wrong  done  by  a 
post  commander  who  is  not  also  the  commanding  officer 
of  the  regiment  of  the  complainant."  1 

The  wrong  complained  of  should  not  be  one  which  con- 
stitutes a  military  offense,  that  is,  a  violation  of  a  specific 
Article  of  War,  since  the  remedy  in  that  case,  which  con- 
sists in  the  submission  of  charges  and  specifications  for 
the  alleged  offense,  is  not  only  specific  but  exclusive.2 

737.  Art.  30.  Any  soldier  who  thinks  himself  wronged  by 
any  officer  may  complain  to  the  commanding  officer  of  his  regi- 
ment, who  shall  summon  a  regimental  court-martial  for  the 
doing  of  justice  to  the  complainant.  Either  party  may  appeal 
from  such  regimental  court=martial  to  a  general  court=martial ; 
but  if,  upon  such  second  hearing,  the  appeal  appears  to  be  ground- 
less and  vexatious,  the  party  appealing  shall  be  punished  at  the 
discretion  of  said  general  court=martial.3 

The  wrong  complained  of  in  this  Article  is  one  that 
arises  in  administration  and  not  from  acts  which  are 
properly  triable  by  courts-martial  with  liability  to  punish- 
ment on  conviction.  It  is  required  that  the  regimental 
commander  shall  summon  a  regimental  court-martial  for 
doing  justice  upon  complaint  being  made.  The  functions 
of  this  court  are  only  to  "investigate"  such  matters  as 

1  Dig.  Op.  J.  A.  G.  36.  2  Davis'  Mil.  Law,  p.  224. 

3  See  ante,  par.  87-89. 


358  MILITARY  LAW 

are  susceptible  of  redress  by  the  doing  of  justice  to  the 
complainant,  and  such  as  are  capable  of  being  set  right 
by  stopping  the  wrongful  condition  which  has  been  caused 
by  the  officer  complained  of.  Erroneous  stoppages  of  pay, 
irregularity  of  detail,  more  labor  required  of  the  individ- 
ual than  is  required  of  other  soldiers,  and  the  like,  are 
subjects  of  action  under  this  Article.1 

The  appeal  of  either  party  to  a  general  court-martial 
subjects  him  to  the  penalty  of  punishment  at  the  discretion 
of  that  court  if  it  finds  the  appeal  groundless  and  vexa- 
tious. Yet,  though  such  court  may  make  a  decision  ad- 
verse to  the  party  appealing,  it  may  not  find  the  appeal 
groundless  or  vexatious,  but  based  upon  honest  grounds 
of  belief,  and  an  honest  conviction  of  right.  In  such  case, 
in  deciding  against  the  appellant,  it  should  also  acquit 
him  of  groundless  and  vexatious  appeal,  and  so  state  in 
its  findings.2 

The  words  "any  officer "  in  this  Article  have  been  con- 
strued to  mean,  in  connection  with  other  words  of  the 
Article,  an  officer  within  the  command  of  the  regimental 
commander,  and  the  acts  contemplated  for  which  redress 
is  to  be  given,  to  be  those  of  company  officers  and  espe- 
cially company  commanders.3 

ABSENCES 

738.  Art.  31.  Any  officer  or  soldier  who  lies  out  of  his  quar- 
ters, garrison,  or  camp,  without  leave  from  his  superior  officer, 
shall  be  punished  as  a  court=martial  may  direct. 

This  Article  is  intended  to  secure  the  presence  of  officers 
and  soldiers  at  all  times,  in  case  of  emergency,  and  is  es- 
pecially applicable  to  a  time  of  war.  The  "superior 
officer"  intended  is  the  one  having  authority  to  grant 
such  leave;  and  when  it  is  to  go  beyond  the  limits  of  the 

1  See  Court-martial  Manual,  p.  104,  note. 

2  See  Simm  ns,  Court-martial,  Sec.  344. 
8  Winthrop,  Vol.  1,  p.  858. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    359 

camp  or  garrison  it  should  be  given  by  the  commander 
thereof;  and,  in  case  of  a  soldier,  if  it  is  to  go  for  more 
than  a  mile  from  camp,  it  must  be  in  writing.1 

739.  Art.  32.  Any  soldier  who  absents  himself  from  his 
troop,  battery,  company,  or  detachment,  without  leave  from 
his  commanding  officer,  shall  be  punished  as  a  court=martial 
may  direct.2 

The  absence  herein  indicated  is  an  absence  from  mili- 
tary supervision,  that  is,  from  the  place  where  it  is  the 
soldier's  duty  to  be,  and  where  he  can  be  found  if  wanted. 

"  No  thing  can  justify  the  absence  of  a  soldier  from  the 
place  assigned  him  but  the  leave,  or  command,  of  his 
commanding  officer,  specifically,  or  generally,  given;  and 
which  the  accused,  in  all  cases,  will  beboundento  prove."3 
If  granted  a  leave  and  the  soldier  overstays  its  limit  he  is 
"absent  without  leave"  and  must  account  therefor.  He 
may,  however,  show  as  a  good  defense  that  it  was  caused 
by  involuntary  detention,  inability  to  travel  through  sick- 
ness, etc.,  or  any  other  agency  beyond  his  power  to  con- 
trol. But  this  cannot  justify  his  absence  if  it  first  began 
in  his  own  deliberate  action  of  absenting  himself  without 
authority. 

"This  Article  contemplates  an  absence  from  the  soldier's 
troop,  battery,  company,  or  detachment, — an  absence 
from  the  post  or  command.  An  unauthorized  absence  from 
quarters  only,  as  from  11  P.M.  inspection,  is  not  properly 
chargeable  under  this  Article"; 4  nor  should  failure  to  repair 
to  the  place  of  parade,  exercise,  or  rendezvous,  etc.,  be 
charged  as  an  absence  without  leave  under  this  Article,  but 
under  Article  33. 5 

An  officer  absent  without  leave  is  chargeable  therewith 
under  the  62d  Article  of  War. 

1  Sea  Art.  34. 

2  See  ante,  par.  297. 

3  Samuel,  p.  338. 

4  Dig.  Op.  J.  A.  G.  374. 
6  Id.  376. 


360  MILITARY  LAW 

An  enlisted  man  who  absents  himself  from  his  post  or 
company  without  authority  will  forfeit  all  pay  and  allow- 
ances accruing  during  such  absence,  but  he  cannot  be 
required,  either  upon  conviction  thereof  by  a  court-martial 
or  otherwise,  to  make  good  the  time  lost.1 

If  an  officer  or  soldier,  on  returning  to  his  station  after 
an  unauthorized  absence,  is,  in  consequence  of  his  state- 
ments of  fact  connected  therewith,  placed  upon  or  allowed 
to  perform  full  duty,  and  .not  proceeded  against  by  his 
proper  military  commander  for  the  military  offense  involved, 
such  action,  under  the  general  custom  of  the  service,  may 
be  pleaded  as  a  good  defense  should  the  officer  or  soldier 
be  brought  to  trial  for  the  unauthorized  absence.2 

The  forfeiture  by  an  enlisted  man  of  his  pay  and  allow- 
ances is  by  operation  of  law,  as  he  renders  no  service  and 
therefore  earns  neither  during  his  absence;  and  the  for- 
feiture accrues  independently  of  the  result  of  a  trial  for  the 
military  offense  involved  in  the  unauthorized  absence.3 

An  officer  absent  without  leave  forfeits  all  pay  during 
such  absence,  unless  the  absence  is  excused  as  unavoid- 
able.4 The  excuse  must  be  accepted  by  the  commander 
vested  with  power  to  grant  leaves  for  a  period  equal  to  or 
greater  than  the  absence,  and  the  discretion  created  by 
the  statute  must  be  exercised  by  him;  his  conclusions  as 
to  its  character,  as  avoidable  or  unavoidable,  are  final  and, 
unless  appealed  from,  are  not  subject  to  review  by  higher 
authority.5 

740.  Art.  33.  Any  officer  or  soldier  who  fails,  except  when 
prevented  by  sickness  or  other  necessity,  to  repair,  at  the  fixed 
time,  to  the  place  of  parade,  exercise,  or  other  rendezvous  ap- 
pointed by  his  commanding  officer,  or  goes  from  the  same, 

1  A.  R.  131;   see  ante,  par.  351-352;    G.  O.  176,  War  Department, 
1906 

2  Dig.  Op.  J.  A.  G.  377. 

3  Id.  378. 

4  Sec.  1265,  Rev.  Statutes  U.  S. 

6Cir.  5,  War  Department,  Feb.  1,  1905. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     361 

without  leave  from  his  commanding  officer,  before  he  is  dis- 
missed or  relieved,  shall  be  punished  as  a  court=martial  may 
direct. 

Under  this  Article  only  " sickness  or  other  necessity" 
justifies  the  failure  of  any  officer  or  soldier  to  repair  at  the 
fixed  time  to  the  place  of  parade,  etc.,  appointed  by  his 
commanding  officer;  and  he  must  not  leave  the  same 
without  leave  from  his  commanding  officer,  before  he  is 
dismissed  or  relieved. 

The  sickness  which  will  prevent  repair  to  the  place  of 
rendezvous  accrues  prior  to  the  necessity  for  repair  thereto, 
and,  in  such  case,  should  be  acted  upon  by  the  proper 
medical  officer,  who  will  determine  beforehand  whether  the 
necessity  of  the  case  prevents  the  repairing  to  the  place  of 
duty,  and  excuse  the  soldier  if  the  circumstances  of  the  ill- 
ness warrant  it.  If  an  officer  or  soldier  should  leave  his 
parade  or  other  duty  from  sickness  it  should  be  reported 
without  delay  to  the  proper  medical  officer.  Nothing  but 
the  most  urgent  necessity,  and  inability  to  ask  and  obtain 
the  excuse  from  his  commander,  will  justify  an  officer  or 
soldier  in  leaving  his  parade,  exercise,  or  other  duty  until 
relieved  therefrom,  or  excused,  by  him.  In  either  failure 
to  repair  to  the  place  at  the  time  designated  or  in  leaving 
the  same  before  being  dismissed  or  relieved,  without  leave 
from  his  commanding  officer,  the  case  must  be  justified  by 
surgeon's  certificate,  or  other  satisfactory  evidence  of  the 
necessity. 

741.  Art.  34.  Any  soldier  who  is  found  one  mile  from  camp, 
without  leave  in  writing  from  his  commanding  officer,  shall  be 
punished  as  a  court=martial  may  direct. 

The  object  of  this  Article  is  to  prevent  straggling,  maraud- 
ing, etc.,  and  to  keep  all  soldiers  within  reasonable  limits, 
which  at  the  same  time  are  sufficiently  extended  to  afford 
room  for  recreation  and  procuring  the  conveniences  for 
camp  or  quarters  permitted  to  be  sold  to  the  Army. 


362  MILITARY  LAW 

A  verbal  permission  given  a  soldier  to  go  more  than  a 
mile  beyond  the  limits  of  camp,  or  line  of  sentinels,  though 
given  by  an  officer,  will  not  protect  a  soldier  from  arrest 
and  trial ;  but  verbal  permission  will  be  valid  within  those 
limits.  A  more  restricted  limit  may  be  fixed  by  any  com- 
manding officer  for  the  members  of  his  command;  this 
Article  not  prohibiting  such  restriction  or  conferring  any 
right  to  the  extreme  limit  which  it  prescribes.1 

742.  Art.  35.  Any  soldier  who  fails  to  retire  to  his  quarters 
or  tent  at  the  beating  of  retreat,  shall  be  punished  according  to 
the  nature  of  his  offense. 

This  Article  not  only  requires  the  return  of  the  soldiers 
to  their  quarters  or  tents  at  retreat,  so  that  they  may  be 
verified,  but  it  also  intends  that  they  shall  remain  there, 
subject  to  any  call  of  emergency,  through  the  night,  unless 
absent  with  leave.  It  also  affords  a  means  of  preserving 
order  within  the  camp  or  garrison,  the  prevention  of  crimes 
by  the  arrest  of  persons  outside  their  quarters  without  per- 
mission, the  entrance  of  spies,  etc.2 

The  "  re  treat"  in  our  service  is  the  second  required 
roll-call  for  the  day,  the  first  being  reveille,  and  the  call 
is  regularly  sounded  by  the  field  musicians  as  prescribed 
in  drill  regulations,  the  exact  hour  therefor  being  fixed  by 
the  commanding  officer.  The  "call  to  quarters/'  which 
requires  the  men  to  repair  thereto  for  the  night,  is  sounded 
at  10.45  P.M.,  and  by  11  o'clock,  at  "taps,"  they  must  be 
in  bed  and  the  lights  must  be  extinguished.3  This  regu- 
lation, therefore,  grants  the  period  between  "retreat" 
and  "call  to  quarters"  during  which  men  are  at  liberty  to 
be  outside  their  quarters,  and  is  a  modification  of  the  origi- 
nal intent  and  restriction  of  the  Article. 


1  Winthrop,  Vol.  1,  pp.  867-868;  Simmons,  Sec.  183. 

'   pp.  545,  546. 
3  A.  R.  375. 


Samuel,  pp.  545, 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    363 


HIRING   ANOTHER   TO   DO   DUTY 

743.  Art.  36.     No   soldier   belonging  to   any   regiment,   troop, 
battery,  or  company  shall  hire  another  to  do  his  duty  for  him, 
or  be  excused  from  duty,  except  in  cases  of  sickness,  disability, 
or  leave  of  absence.     Every  such  soldier  found  guilty  of  hiring 
his  duty,  and  the  person  so  hired  to  do  another's  duty,  shall  be 
punished  as  a  court=martial  may  direct. 

This  Article  was  originally  intended  to  prevent  the  con- 
tinuance of  a  custom  which  had  grown  up  in  the  English 
army,  by  which  soldiers  were  permitted  to  engage  in 
work  or  labor  outside  the  military  establishment  and  to 
receive  wages  therefor;  and  the  wages  being  more  than 
their  pay,  they  often  hired  others,  comrades,  to  do  their 
duty,  leaving  them  to  their  civil  employment.1 

The  custom  is  so  manifestly  detrimental  to  the  proper 
instruction  of  men  in  the  duties  of  a  soldier,  and  so  de- 
structive of  discipline,  that,  in  modern  times,  it  has  not 
been  thought  of  as  at  all  permissible.  Every  man  must, 
under  this  Article,  perform  his  own  duty  except  in  cases 
of  sickness,  disability,  or  leave  of  absence.  The  excuse, 
when  one  of  sickness  or  disability,  must  be  granted  after 
the  action  of  the  proper  medical  officer  in  each  case,  and 
the  leave  of  absence  must  be  granted  by  an  officer  having 
the  authority  to  grant  leave  of  absence  from  such  duty. 

744.  Art.  37.     Every  non-commissioned  officer  who  connives 
at  such  hiring  of  duty  shall  be  reduced.     Every  officer  who  knows 
and  allows  such  practices  shall  be  punished  as  a  court-martial 
may  direct. 

This  Article  still  further  forbids  the  hiring  by  a  soldier 
of  another  to  do  his  duty  in  that  it  provides  for  the  pun- 
ishment of  any  non-commissioned  officer  who  connives  at 
it,  and  of  any  commissioned  officer  who  knows  and  allows 
such  practices.  The  punishment  by  reduction  of  the  non- 
commissioned officer,  found  guilty  under  this  Article,  is 
mandatory. 

1  See  Samuel,  p.  549. 


364  MILITARY  LAW 


DRUNKENNESS   ON   DUTY 

745.  Art.  38.  Any  officer  who  is  found  drunk  on  his  guard, 
party,  or  other  duty,  shall  be  dismissed  from  the  service.  Any 
soldier  who  so  offends  shall  suffer  such  punishment  as  a  court= 
martial  may  direct.  No  court=martial  shall  sentence  any  soldier 
to  be  branded,  marked,  Qr  tattooed.1 

Drunkenness,  as  commonly  defined,  is  the  condition  of 
a  man  whose  mind  is  affected  by  the  immediate  use  of 
intoxicating  drinks.2 

In  military  service  it  is  held  that  the  offense,  under  the 
above  Article  of  War,  is  complete  whether  the  party  be 
found  drunk  as  a  result  of  drinking  intoxicating  liquor, 
or  be  found  "  under  the  influence  of  opium  or  other  in- 
toxicating drug  or  thing."3  "It  matters  not  what  the 
quantity  taken  may  be;  if  ever  so  little  and  the  soldier 
becomes  drunk,  he  is  punishable."  4  Nor  does  the  degree 
of  drunkenness  affect  the  result  if  there  be  any  such  in- 
toxication as  sensibly  to  impair  the  rational  and  full  exer- 
cise of  his  mental  and  physical  faculties.5 

The  offense  is  much  more  serious  in  the  military  than 
in  the  civil  code,  because  of  the  fact  -that  the  responsi- 
bilities of  the  soldier  are  often  very  great,  and  drunken- 
ness not  only  unfits  the  individual  soldier  for  duty  and 
is  subversive  of  discipline,  but,  in  time  of  war,  might  en- 
danger the  safety  of  the  command. 

The  words  "on  duty"  include  not  only  duty  on  guard, 
parade,  drill,  police,  or  routine  detail,  etc.,  but  also  all  de- 
scriptions and  occasions  of  duty  properly  devolving  upon 
an  officer  or  soldier  by  reason  of  his  office,  command, 
rank,  or  general  military  obligation.6 

1  See  ante,  par.  275-277,  and  post,  Art.  98,  par.  805. 

2  Bouvier,  Law  Dict'y. 

3  Winthrop,  Vol.  l,p.  873;  Simmons,  Sec.  157;  Hough,  p.  208;  Davis' 
Mil.  Law,  p.  408;  Dig.  Op.  J.  A.  G.  51. 

4  Hough,  p.  208. 

5  Dig.  Op.  J.  A.  G.  50. 

6  Winthrop,  Vol.  I,  p.  874;   Davis'  Mil.  Law,  p.  408. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     365 

The  post  commander  and  post  surgeon,  being  liable 
to  be  called  upon  in  the  performance  of  duty  at  any  time, 
are  on  duty  at  all  times,  as  is  also  an  officer  with  his  regi- 
ment in  front  of  the  enemy,  or  a  commander  of  an  ex- 
pedition against  hostile  Indians.  The  post  quartermaster 
is  also  "on  duty"  during  the  hours  that  he  may  properly 
be  called  upon  to  perform  his  duties,  and  the  offieer  of  the 
day,  and  all  members  of  the  guard  during  the  entire 
period  of  such  duty.1  An  officer  reporting  in  person 
drunk,  to  the  commanding  officer  to  whom  he  has  been 
ordered  to  report,  on  arrival  at  a  post;  or  an  officer  re- 
porting to  the  post  commander,  when  drunk,  for  orders 
as  officer  of  the  day,  after  having  been  duly  detailed  as 
such,  has  been  held  chargeable  under  this  Article.2  But 
an  officer  absent  from  his  command,  or  under  conditions 
where  he  is  not  liable  to  duty,  who  becomes  drunk,  should 
be  charged  under  the  62d  Article  of  War,  or,  if  the  cir- 
cumstances justify  it,  with  " conduct  unbecoming  an  offi- 
cer and  a  gentleman"  under  the  61st  Article. 

The  offense  described  in  the  Article  is  that  of  being 
" found  drunk"  on  the  duty  and  not  of  becoming  so  after 
entering  thereon,  but  it  is  held  that  "a  soldier  found  drunk 
when  on  duty  was  properly  convicted  under  this  Article, 
though  his  drunkenness  actually  commenced  before  he 
went  on  the  duty;  his  condition  not  being  perceived  till 
some  time  after  he  had  entered  upon  the  same."  3  It  is 
an  offense,  however,  knowingly  to  allow  a  soldier  to  go  on 
duty  when  under  the  influence  of  intoxicating  liquor,  and 
it  is  the  duty  of  the  proper  officer  making  the  detail,  or  in 
charge  of  the  inspection  thereof,  or  of  the  inspection  of  men 
before  entering  upon  any  duty,  to  reject  such  soldiers;  and 
charges  in  such  case  should  be  drawn  under  the  62d  Article 

1  Winthrop,  Vol.  1,  p.  875. 

2  Dig.  Op.  J.  A.  G.  45. 

3  Id.  43. 


366  MILITARY  LAW 

of  War,  as  being  so  much  under  the  influence  of  intoxica- 
ting liquor  as  to  disqualify  the  accused  from  the  proper 
performance  of  his  duties. 

"The  drunkenness  need  not  be  such  as  to  totally  in- 
capacitate the  party  for  the  duty;  it  is  sufficient  if  it  be 
such  as  sensibly  to  impair  the  full  and  free  use  of  his  men- 
tal or  physical  abilities.  It  is  not  a  sufficient  defense  to  a 
charge  of  drunkenness  on  duty  to  show  that  the  accused, 
though  under  the  influence  of  liquor,  contrived  to  get 
through  and  somehow  perform  the  duty."  1 

The  charge  and  specification  should  specifically  state 
in  the  words  of  the  Article  that  the  accused  was  "found 
drunk"  on  the  duty.  Under  the  statutory  expression 
"found  drunk"  the  word  "found"  cannot  be  omitted.2 

Where  the  drunkenness  was  caused  by  morphine  or 
other  drug  prescribed  by  a  medical  officer  of  the  Army  or 
civil  physician,  this  may  constitute  an  excuse  for  a  breach 
of  discipline  committed  by  an  officer  or  soldier,  provided 
it  clearly  appears  that  this  was  the  sole  cause  of  the  offense 
committed,  the  accused  not  being  chargeable  with  negli- 
gence or  fault  in  the  case.3  But  the  fact  that  it  was  pre- 
scribed by  a  medical  officer  or  physician  must  be  proved. 
The  accused  cannot  justify  the  taking  of  any  spirits  or 
drug  upon  his  own  prescription,  as  neither  an  officer  nor 
soldier  is  authorized  to  risk  incapacitating  himself  for  duty 
by  taking  medicine  at  his  own  discretion.4  The  plea  may 
also  be  made  under  the  foregoing  Article,  as  rendering 
the  accused  inculpable,  that  the  drunkenness  was  pro- 
duced by  the  contrivance  of  enemies,  and  against  the 
will  or  consent  of  the  accused. 

The  punishment,  in  case  of  the  conviction  of  an  officer, 
is  mandatory. 

1  Dig.  Op.  J.  A.  G.  49. 

2  See  Bishop  on  Statutory  Crimes,  Sec  980. 

3  Dig.  Op.  J.  A.  G.  1234. 

*  Winthrop,  Vol.  1,  p.  877. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    367 


GUARD  DUTY:    SENTINELS  QUITTING  GUARD 

746.  Art.  39.  Any  sentinel  who  is  found  sleeping  upon  his 
post,  or  who  leaves  it  before  he  is  regularly  relieved,  shall  suffer 
death,  or  such  other  punishment  as  a  court=martial  may  direct. 

The  safety  of  the  Army  in  time  of  war,  and  the  security 
of  persons  and  property  under  their  charge  in  time  of 
peace,  depend  upon  the  watchfulness  and  careful  perform- 
ance of  their  duty  by  sentinels.  The  heaviest  penalties 
are,  therefore,  awarded  for  failure  to  properly  perform  the 
duties  of  a  sentinel,  and  especially  upon  him  who  aban- 
dons his  post  or  is  found  asleep  thereon. 

The  responsibility  of  a  soldier  on  duty  as  a  sentinel  is 
very  great;  his  powers  are,  for  that  reason,  correspond- 
ingly increased,  and  he  represents  for  the  time  being  the 
commanding  officer  in  the  execution  of  his  orders  and 
instructions.  "A  sentinel,  in  respect  to  the  duties  with 
which  he  is  charged,  represents  the  superior  military 
authority  of  the  command  to  which  he  belongs,  and 
whose  orders  he  is  required  to  enforce  on  or  in  the  vicinity 
of  his  post.  As  such  he  is  entitled  to  the  respect  and 
obedience  of  all  persons  who  come  within  the  scope  of 
the  orders  he  is  required  to  carry  into  effect."  1  "Ml 
persons,  of  whatever  rank  in  the  service,  are  required  to 
observe  respect  toward  sentinels."  2 

By  "post"  of  a  sentinel  is  meant  not  only  the  spot 
on  which  a  sentinel  stands  when,  on  coming  on  duty,  he 
receives  his  orders,  or  on  which  he  is  placed  by  the  officer 
or  non-commissioned  officer  who  leaves  him  to  the  ob- 
servance of  his  duties,  but  the  word  includes  the  whole 
extent  of  ground  specially  pointed  out  to  him  as  the  limits 
of  his  walk  as  a  sentry.3  And  the  quitting  of  his  post 
is  the  leaving  it,  and  being  off  his  post  any  material  distance. 

1  Davis'  Mil.  Law,  p.  411. 

2  Manual  of  Guard  Duty,  1902,  par.  382. 

3  Simmons,  Sec.  199. 


368  MILITARY  LAW 

In  order  that  sentinels  may  be  vigilant,  provision  is 
made  to  limit  their  period  of  duty,1  and  in  our  service 
sentinels  will  ordinarily  be  on  duty  two  hours  out  of  six. 
In  severe  weather  or  under  exceptional  conditions  a  sen- 
tinel may  be  relieved  hourly  or  oftener.2 

"It  is  no  defense  to  a  charge  of  'sleeping  on  post' 
that  the  accused  had  been  previously  overtasked  by  ex- 
cessive guard  duty;  or  that  imperfect  discipline  prevailed 
in  the  command  and  similar  offenses  had  been  allowed  to 
pass  without  notice;  or  that  the  accused  was  irregularly 
or  informally  posted  as  a  sentinel.  Evidence  of  such  cir- 
cumstances, however,  may,  in  general,  be  received  in  ex- 
tenuation of  the  offense,  or,  after  sentence,  may  form  the 
basis  for  a  mitigation  or  partial  remission  of  the  punish- 
ment." 

"An  officer  who  places  or  continues  a  soldier  on  duty  as 
a  sentinel  when,  from  excessive  fatigue,  infirmity,  or  other 
disability,  he  is  incompetent  to  perform  the  important 
duties  of  such  a  position,  will  ordinarily  render  himself 
liable  to  charges.77  3 

The  offense  of  a  sentinel  "leaving  his  post  before  being 
regularly  relieved'7  should  be  charged  under  this  Article, 
and  since  the  penalty  makes  it  a  capital  offense,  it,  there- 
fore, cannot  be  tried  by  a  summary  court,  such  court  not 
having  jurisdiction  in  capital  cases. 

Responsibility  of  Sentinels  in  Charge  of  Prisoners. — 
A  sentinel  in  charge  of  prisoners  exercises  his  authority  as 
derived  "in  part  from  analogy  to  the  functions  of  a  jailer 
at  common  law,  and  in  part  from  the  laws,  regulations, 
and  customs  of  the  service  which  regulate  the  duties  and 
responsibilities  of  sentinels  in  charge  of  prisoners.  If, 
therefore,  a  prisoner  in  his  custody  attempts  to  escape, 
it  is  the  duty  of  the  sentinel  to  use  his  utmost  endeavor 

1  See  Manual  of  Guard  Duty,  1902,  par.  31-32. 

2  Field  Service  Regulations,  par.  166,  199. 

3  Dig.  Op.  J.  A.  G.  55. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     369 

to  prevent  such  escape,  and  he  may  not  only  use  force  for 
that  purpose,  but  he  may  resort  to  every  means  in  his 
power  to  frustrate  such  attempt.  It  is  his  duty  first, 
however,  to  call  upon  the  prisoner  to  halt,  and  in  the  use 
of  force  he  is  governed  by  the  same  restrictions  which 
apply  to  officers  of  the  law  in  a  similar  case."  1 

The  rule  of  the  common  law  is  that  an  officer  may  shoot 
and  kill  an  escaping  felon  who  refuses  to  halt  when  called 
upon  to  do  so;  though  the  necessity  for  such  action  should 
be  made  to  appear  if  inquired  into  judicially.  But  he  is 
not  justified  in  so  shooting  and  killing  in  case  of  a  simple 
misdemeanor.2  In  some  States  the  foregoing  rule  has  been 
modified  by  statute.  Under  Texas  statutes,  for  instance, 
an  officer  is  not  justified  in  killing  a  prisoner  to  prevent 
his  escape,  even  in  case  of  felony,  unless  the  officer's  own 
life  is  threatened,  or  he  is  in  danger  of  great  bodily  injury.3 

In  " military"  offenses,  however,  the  common  law  dis- 
tinctions between  felonies  and  misdemeanors  are  inappli- 
cable.4 

The  sentinel  also  has  a  responsibility  under  military  law, 
unknown  to  the  civil  officer,  in  his  duty  of  obedience  to 
the  orders  of  his  superior,  under  penalty  of  severe  punish- 
ment if  he  fails  to  obey.  His  orders  relative  to  prisoners, 
as  promulgated  by  the  Secretary  of  War,  are  to  prevent 
their  escape,  and  if  a  prisoner  attempts  to  escape,  to  call, 
"  Halt ! " ;  and  "If  he  fails  to  halt  when  the  sentinel  has  once 
repeated  his  call,  and  if  there  be  no  other  possible  means  of 
preventing  his  escape ,  the  sentinel  will  fire  upon  him";  and 
in  " firing  upon  him"  is  meant  "firing  to  hit  him."  5 

It  has  been  held  that  "If  a  homicide  be  committed  by 

1  Davis'  Mil  Law,  pp.  411,  412. 

2  Hawley,  Law  of  Arrest,  pp.  28-31;  Bishop,  Cr.  Proc.,  Vol.  I,  Sec. 
159;  Clark,  Cr.  Law,  pp.  135-136;  Am.  and  Eng.  Enc.  of  Law,  Vol.  2,  p. 
851;  Id.,  Vol.  21,  p.  205. 

3  Am.  and  Eng.  Enc.  of  Law,  Vol.  21,  p.  206. 

4  Id.,  Vol.  21,  p.  207,  note  6;   U.  S.  v.  Clark,  31  Fed.  Rep.  710. 
6  See  Manual  of  Guard  Duty,  1902,  par.  364-367. 


370  MILITARY  LAW 

a  military  guard  without  malice,  and  in  the  performance 
of  his  supposed  duty  as  a  soldier,  such  homicide  is  excu- 
sable, unless  it  was  manifestly  beyond  the  scope  of  his 
authority,  or  was  such  that  a  man  of  ordinary  sense  and 
understanding  would  know  that  it  was  illegal."  l  "An 
army  is  not  a  deliberative  body.  It  is  the  executive 
arm.  Its  law  is  that  of  obedience.  No  question  can  be 
left  open  as  to  the  right  to  command  in  the  officer,  or 
the  duty  of  obedience  in  the  soldier."  2  "To  aid  mili- 
tary officers  in  the  proper  enforcement  of  the  custody  of 
prisoners,  rules  and  orders  have  been  publicly  promul- 
gated by  the  Secretary  of  War.  Such  rules  and  orders 
have  the  force  and  effect  of  statutory  law."  3 

The  duty  of  the  sentinel  is,  therefore,  obedience  to 
the  existing  orders,  as  quoted  above,  and  his  responsibility 
for  action  in  each  case  will  be  determined  by  the  fact  of 
his  compliance  or  non-compliance  with  those  orders. 

Where  the  homicide  is  committed  upon  a  military  reser- 
vation the  United  States  courts  will  have  jurisdiction.4 
But  if  it  is  committed  outside  a  military  reservation,  and 
within  the  jurisdiction  of  any  State,  its  courts  will  have 
jurisdiction  of  the  case,  and  justification  for  the  act  must 
be  shown  there.  If  not  sustained  on  trial,  there  is  re- 
course to  be  had  by  final  appeal,  through  the  highest 
court  of  the  State,  if  it  decides  adversely,  to  the  Supreme 
Court  of  the  United  States.  The  United  States  courts 
will  not  interfere,  by  issue  of  a  writ  of  habeas  corpus,  to 
take  such  person  from  the  custody  of  the  State  author- 
ities in  advance  of,  and  to  prevent,  his  trial  by  the  State 
courts; 5  but  they  will  act  upon  an  appeal  from  their  final 
adverse  decision. 

1  U.  S.  v.  Clark,  31  Fed.  Rep.  710;  Com.  v.  Shortall,  206  Pa.  165; 
Am.  Dig.,  1904,  A,  p.  2174. 

2  Justice  Brewer,  In  re  Grimley,  137  U.  S.  153. 

8  Judge  Hunger,  In  re  Fair,  100  Fed.  Rep.  153;  see  ante,  par.  13. 
4  U.  S.  v.  Clark,  31  Fed.  Rep.  710. 
6  Drury  v.  Lewis,  200  U.  S.  1. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    371 

747.  Art.  40.     Any   officer   or   soldier   who    quits    his    guard, 
platoon,  or  division,  without  leave  from  his  superior  officer,  ex- 
cept in  a  case  of  urgent  necessity,  shall  be  punished  as  a  court= 
martial  may  direct.1 

The  " urgent  necessity"  in  this  Article  has  the  same  im- 
port as  the  words  " sickness  or  other  necessity"  employed 
in  Article  33,  and  the  quitting  of  his  guard,  platoon,  or 
division,  for  that  reason,  must  be  justified,  in  a  like  man- 
ner, by  the  certificate  of  a  medical  officer  or  other  satis- 
factory evidence  of  the  "  urgent  necessity."  The  word 
" guard"  is  not  limited  to  the  regular  daily  camp  or  post 
guard,  but  includes  any  formal  guard,  as  an  escort  guard, 
guard  for  prisoners,  etc.2 

FALSE    ALARMS 

748.  Art.  41.     Any   officer   who,   by   any   means   whatsoever, 
occasions  false  alarms  in  camp,  garrison,  or  quarters,  shall  suf- 
fer  death,   or   such   other   punishment  as   a  court=martial   may 
direct. 

This  Article  is  intended  not  only  to  preserve  peace  and 
quiet  in  a  command  in  order  to  insure  needed  rest  from 
the  fatigue  of  daily  duty,  but  it  protects  the  guard  (whose 
duty  it  is  to  turn  out  on  occasions  of  alarm  of  any  kind) 
from  undue  annoyance  and  repsated  calls  for  service 
which  being  found  false  and  unnecessary  might  lessen 
their  vigilance  when  prompt  action  was  necessary. 

The  false  alarm  may  be  caused  by  "any  means  whatso- 
ever," by  words  as  well  as  by  acts.  But  if  there  is  reason- 
able ground  for  the  alarm  it  will  not  constitute  the  offense 
when  given,  but  on  the  contrary  is  a  commendable  act.3 
The  "reasonable  ground"  must,  however,  be  made  clearly 
to  appear  in  defense;  the  "intent"  as  well  as  the  circum- 
stances connected  with  the  act  may  be  considered  in 


1  See  ante,  par.  740. 

2  Winthrop,  Vol.  1,  p.  870. 
8  Samuel,  p.  576. 


372  MILITARY  LAW 

justification  of  it,  or  in  awarding  punishment  or  in  mitiga- 
tion thereof. 

The  Article  refers  to  officers  only;  enlisted  men  would 
not  be  charged  under  this  Article,  but  under  an  Article 
covering  their  misconduct. 

MISBEHAVIOR   BEFORE   THE   ENEMY,  ETC. 

749.  Art.  42.  Any  officer  or  soldier  who  misbehaves  him= 
self  before  the  enemy,  runs  away,  or  shamefully  abandons  any 
fort,  post,  or  guard,  which  he  is  commanded  to  defend,  or  speaks 
words  inducing  others  to  do  the  like,  or  casts  away  his  arms  or 
ammunition,  or  quits  his  post  or  colors  to  plunder  or  pillage,  shall 
suffer  death,  or  such  other  punishment  as  a  court=martial  may 
direct. 

The  " misbehavior"  herein  referred  to  is  not  that  mis- 
conduct which  may  be  charged  as  "  conduct  unbecoming 
an  officer  and  a  gentleman"  under  the  61st  Article  of 
War,  but  "military"  misconduct,  such  as,  or  similar  to, 
the  acts  specified  in  the  Article,  which  show  cowardice, 
lack  of  loyalty  to  his  command,  or  give  encouragement 
to  the  enemy,  or  any  act  tending  to  weaken  the  strength 
or  to  discourage  the  action  of  his  own  troops.  "  Misbe- 
havior before  the  enemy  may  be  exhibited  in  the  form  of 
cowardice,  or  it  may  consist  of  a  wilful  violation  of  orders, 
gross  negligence  or  inefficiency,  an  act  of  treason  or  treach- 
ery, etc.  It  need  not  be  committed  in  the  actual  sight 
of  the  enemy,  but  the  enemy  must  be  in  the  neighborhood, 
and  the  act  of  offense  have  relation  to  some  movement  or 
service  directed  against  the  enemy,  or  growing  out  of  a 
movement  or  operation  on  his  part."  1 

The  "  inducing  others  "  may  be  by  word  or  act,  and 
directed  either  towards  the  commanding  officer,  or  the 
officers  or  troops  under  his  command.2 

The  term  "post"  has  reference  to  any  point  or  position 
held,  whether  fortified  or  not,  which  a  detachment  may 

1  Dig.  Op.  J.  A.  G.  56;  see  Winthrop,  Vol.  1,  pp.  888-889. 

2  Samuel,  p.  611. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     373 

be  ordered  to  occupy,  or  which  it  may  be  its  duty  to 
defend;  and  a  "shameful"  abandonment  is  one  made 
unnecessarily,  or  if  necessarily  made  consists  in  leaving 
the  arms,  equipment,  and  other  public  property  to  fall 
into  the  hands  of  the  enemy  when  it  might  have  been 
saved  or  at  least  destroyed  to  prevent  its  use  by  him.1 

750.  Art.  43.     If  any  commander   of  any   garrison,   fortress, 
or  post  is  compelled,  by  the  officers  and  soldiers  under  his  com= 
mand,  to  give  up  to  the  enemy  or  to  abandon  it,  the  officers  or 
soldiers  so  offending  shall  suffer  death,  or  such  other  punishment 
as  a  court=martial  may  direct. 

The  "compelling"  indicated  in  this  Article  is  that  of 
direct  force  or  compulsion  and  not  of  mere  words  of  in- 
ducement as  in  the  previous  Article.  This  offense  amounts 
to  a  palpable  act  of  mutiny  in  taking  by  force  from  the 
commanding  officer  his  right  and  power  of  command. 
The  animus  of  the  act,  whether  insubordination,  coward- 
ice, treachery,  etc.,  is  immaterial;  no  amount  of  suffering, 
privation,  or  sickness  to  which  the  garrison  may  be  ex- 
posed through  the  determination  of  the  commander  to 
hold  his  post  will  avail  as  an  excuse  for  the  crime.2 

FORBIDDEN   RELATIONS   WITH   THE   ENEMY 

751.  Art.  44.     Any    person    belonging   to    the   armies   of   the 
United  States  who  makes  known  the  watchword  to  any  person 
not  entitled  to  receive  it,  according  to  the  rules  and  discipline  of 
war,  or  presumes  to  give  a  parole  or  watchword  different  from 
that  which  he  received,  shall  suffer  death,  or  such  other  punish= 
ment  as  a  court=martial  may  direct. 

The  countersign,  in  our  service,  is  a  word  given  to  the 
officer  of  the  day  and  of  the  guard,  to  sentinels  authorized 
to  pass  persons  in  possession  of  it,  and  to  persons  of  the 
command  whose  duties  require  them  to  pass  the  sentinels 
at  night,  and  to  such  other  persons  to  whom  the  com- 

1  Winthrop,  Vol.  1,  p.  891. 

2  Id.,  p.  897;  Samuel,  p.  608.     For  compulsion  as  a  defense  under 
this  Article,  see  ante,  par.  285. 


374  MILITARY  LAW 

mander  may  communicate  it.  The  parole  is  a  special 
check  upon  the  countersign,  given  only  to  those  who,  by 
their  office  or  duty,  are  entitled  to  visit  and  inspect  guards 
or  sentinels  at  night.  It  is  used  only  as  a  means  of  iden- 
tification and  will  not  avail  as  a  passport  unless  accom- 
panied by  the  countersign. 

The  term  "watchword"  as  used  in  this  Article  compre- 
hends not  only  the  countersign  and  parole,1  but  any 
preconcerted  word  or  signal  issued,  by  competent  au- 
thority, for  a  similar  purpose  in  the  performance  of  guard 
or  outpost  duty.  "As  no  specific  intent  is  set  forth 
in  the  statute,  the  offense  may  be  committed  through 
negligence  or  inadvertence,  or  with  the  intent  to  convey 
the  watchword  to  the  enemy;  the  offense  would  be  com- 
plete in  either  case."  2 

The  giving  of  a  wrong  watchword  might  prove  as  preju- 
dicial as  making  a  right  one  known,  for,  though  it  could 
afford  no  information  to  an  enemy,  it  might  induce  dis- 
astrous confusion  in  the  intended  operations  of  our  own 
armies. 

752.  Art.  45.  Whosoever  relieves  the  enemy  with  money, 
victuals,  or  ammunition,  or  knowingly  harbors  or  protects  an 
enemy,  shall  suffer  death,  or  such  other  punishment  as  a  court** 
martial  may  direct. 

By  "enemy"  in  this  and  the  following  Article  is  meant 
not  only  members  of  an  opposing  army  but  every  subject 
of  any  foreign  power,  and  all  rebels,  with  whom  we  are  at 
war.  It  applies  to  all  those  in  hostile  attitude  or  capable 
of  action,  but  does  not  mean  that  the  sick  and  wounded, 
captured  from  the  enemy,  shall  not  receive  relief  and  the 
same  medical  care  and  treatment,  if  practicable,  as  those 
of  our  own  troops,  in  accordance  with  the  laws  of  war.3 

The  acts  specified  in  these  Articles  would,  if  proved, 

1  Hough,  p.  174. 

2  Davis'  Mil.  Law,  p.  417. 

3  Hough,  pp.  157-158;  see  ante,  par.  656. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     375 

constitute  treason,  and  prosecution  could  be  had  in  the 
courts  of  the  United  States  for  that  offense. 

The  word  " whosoever"  was  formerly  held  to  include 
civilians  as  well  as  persons  in  the  military  service,  thereby 
making  them  amenable  to  trial  and  punishment  by  court- 
martial  under  either  Article.  But  later  decisions  pre- 
clude the  exercise  of  military  jurisdiction  over  this  class 
of  offenses  committed  by  citizens  in  places  which  are  not 
under  military  government  or  martial  law.1 

753.  Art.  46.     Whosoever  holds  correspondence  with,  or  gives 
intelligence  to,  the  enemy,  either  directly  or  indirectly,  shall  suf= 
fer  death,  or  such  other  punishment  as  a  court=martial  may  direct. 

The  rule  of  "  non-intercourse "  with  the  enemy  governs 
all  soldiers  and  citizens  in  time  of  war,  and  no  communi- 
cation can  be  had  except  as  authorized  under  the  laws  of 
war.  Holding  correspondence  is,  therefore,  forbidden  by 
those  laws  as  well  as  by  this  Article,  and  the  term  includes 
all  communication  by  letter,  token,  in  print,  or  by  tele- 
gram, telephone,  or  wireless  telegraphy,  and  the  offense 
is  complete  in  the  transmittal  or  attempted  transmit tal 
thereof.  It  is  not  essential  that  the  communication  should 
reach  its  destination.2 

In  " giving  intelligence"  to  the  enemy,  however,  it  is 
essential  that  material  information  should  be  actually 
communicated  to  him;  the  communication  may  be  verbal, 
in  writing,  or  by  signals.3 

DESERTION 

754.  Art.  47.     Any    officer   or   soldier   who,    having   received 
pay,  or  having  been  duly  enlisted  in  the  service  of  the  United 
States,  deserts  the  same,  shall,  in  time  of  war,  suffer  death,  or 
such  other  punishment  as  a  court=martial  may  direct;   and  in 
time  of  peace,  any  punishment,  excepting  death,  which  a  court= 
martial  may  direct.4 

1  Dig.  Op.  J.  A.  G.  58  and  note  5;  see  ante,  par.  685. 

2  Winthrop,  Vol.  1,  p.  904;  Dig.  Op.  J.  A.  G.  62. 

3  Dig.  Op.  J.  A.  G.  63. 

4  See  ante,  par.  186,  189,  306,  353. 


376  MILITARY  LAW 

Evidence  of  the  fact  that  an  officer  or  soldier  has  "  re- 
ceived pay, "  or  of  his  "  having  been  duly  enlisted, "  is  suf- 
ficient to  show  acceptance  of  the  contract  of  service  with 
the  United  States,  in  cases  of  a  charge  of  desertion  there- 
from. In  order  to  convict  there  must  be  proof  of  the 
enlistment,  or  the  receipt  of  pay  as  a  soldier,  and  also  of 
the  absence  without  leave,  and  an  intent  not  to  return. 

11  Desertion  is  an  unauthorized  absenting  himself  from 
the  military  service,  by  an  officer  or  soldier,  with  the  in- 
tention of  not  returning"  1  It  is  the  "intent  not  to  return" 
that  constitutes  the  gist  of  the  offense;  if  the  intention  of 
returning  remains  always  present  the  offense  does  not 
constitute  desertion,  but  "absence  without  leave."  The 
intent  to  abandon  the  service  must,  therefore,  be  proved, 
and  this  may  be  done  by  showing  circumstances  attend- 
ing, or  connected  with,  the  absence  which  indicate  whether 
there  was  an  intention  to  return  or  not. 

The  absence  may  begin  by  the  soldier  directly  absenting 
himself,  or  by  his  remaining  absent  from  his  service  in 
not  returning  after  an  authorized  absence  therefrom. 

An  "escape"  by  a  prisoner  is  not  necessarily  desertion; 
the  intent  to  remain  absent  must  be  shown.  But  a  con- 
siderable absence,  and  the  necessity  of  apprehending  him 
by  force,  is  strong  presumptive  evidence  of  the  intent 
necessary  to  constitute  the  crime.2 

"Every  desertion  includes  an  absence  without  leave. 
Upon  trial  for  desertion  the  accused  is  tried  also  for  the 
absence  without  leave  involved  in  the  offense  charged. 
If  acquitted,  without  reservation,  of  the  desertion,  he  is 
acquitted  also  of  the  lesser  offense.  If  convicted,  as  he 
may  be,  of  the  lesser  offense  only,  under  a  charge  of  the 
greater,  he  is  acquitted  in  law  of  the  latter."  3 

Reward   for  Deserters. — The  amount  of  the  reward 
(A.  R.  119)  or  expenses  paid  for  apprehending  a  deserter, 
1  Dig.  Op.  J.  A.  G.  1053.  2  Id.  1057.  3  Id.  1093. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    377 

and  the  expenses  incurred  in  transporting  him  from  the 
point  of  apprehension,  delivery,  or  surrender,  to  the  station 
of  his  company  or  detachment,  or  to  the  place  of  his  trial,, 
including  the  cost  of  transportation  of  the  guard,  will  be 
set  against  his  pay  upon  conviction  of  desertion  by  a 
court-martial,  or  upon  his  restoration  to  duty  without 
trial.  If  convicted  of  absence  without  leave  only,  he  will 
be  charged  with  the  expense  incurred  in  transporting  him 
to  his  proper  station.1  This  stoppage  is  incident  upon 
conviction,  and  need  not  be  directed  in  the  sentence.2 

If  a  soldier  be  acquitted  of  desertion,  or  convicted  of 
absence  without  leave  only,  any  amount  paid  as  a  reward 
for  his  arrest  will  not  be  stopped  against  his  pay  unless,  in 
case  of  conviction  of  absence  without  leave,  the  sentence  of 
the  court  shall  so  direct.3 

A  deserter  will  make  good  the  time  lost  by  desertion, 
unless  discharged  by  competent  authority.  He  will  be 
considered  again  in  service  from  the  date  of  his  appre- 
hension or  surrender;  but  if  a  deserter  enlists  while  in  deser- 
tion, his  services  under  such  unlawful  enlistment  will  not 
be  counted  as  making  good  any  of  the  time  lost  by  de- 
sertion. 

A  deserter  who  is  apprehended  or  who  surrenders  is  not 
entitled  to  pay  or  allowances  for  any  period  during  which 
he  is  in  confinement  awaiting  trial  or  undergoing  punish- 
ment imposed  by  a  general  court-martial  for  his  desertion. 
He  is  entitled  to  pay  and  allowances  for  the  period  he  is 
held  in  service  to  make  good  time  lost  by  desertion.4 

When  the  amount  of  the  reward  which  has  been  paid 
for  his  apprehension  is  not  stopped  against  the  soldier 
the  amount  thereof  comes  from  the  item  in  the  Army 
Appropriation  Bill  entitled  "  Quartermaster's  Depart- 

1  A.  R.  125. 

1  See  ante,  par.  355. 

*  A.  R.  126,  as  amended  by  G.  O.  144,  War  Department,  1906. 

4  A.  R.  129;  G.  O.  176,  War  Department,  1906. 


378  MILITARY  LAW 

ment:  Incidental  Expenses  for  the  apprehension,  secur- 
ing, and  delivery  of  deserters,  including  military  prisoners, 
and  the  expenses  incident  to  their  pursuit."  "In  prac- 
tice the  word  'deserters'  as  here  used  is  construed  to 
include  soldiers  charged  with  desertion  and  is  not  limited 
to  soldiers  convicted  of  desertion.  The  reward  would, 
therefore,  be  payable  even  though  the  soldier  were  subse- 
quently discharged  without  trial."  1 

The  right  of  the  United  States  to  arrest  and  bring  to 
trial  a  deserter  is  paramount  to  any  right  of  control  over 
him  by  a  parent  or  guardian  on  the  ground  of  his  minority.2 
But  a  minor,  when  not  under  charges  or  sentence,  if  en- 
listed without  their  consent,  may  be  discharged  by  any 
United  States  court,  upon  application  therefor,  showing 
the  facts,  by  the  parent  or  guardian  of  such  minor,  entitled 
to  his  custody  and  control. 

Desertion  of  an  Officer. — The  President  is  authorized 
by  law  to  drop  from  the  rolls  of  the  Army  for  desertion 
any  officer  who  is  absent  from  duty  three  months  without 
leave;  and  no  officer  so  dropped  shall  be  eligible  for  re- 
appointment.3  It  is  also  held  that  an  officer  so  dropped 
is  not  entitled  to  apply  for  trial  by  court-martial,  under 
Sec.  1230,  R.  S.,  as  in  cases  of  summary  dismissal  by  the 
President  in  time  of  war.4 

STATUTE   OF   LIMITATION   IN   DESERTION5 

755.  Art.  48.  Every  soldier  who  deserts  the  service  of  the 
United  States  shall  be  liable  to  serve  for  such  period  as  shall, 
with  the  time  he  may  have  served  previous  to  his  desertion, 
amount  to  the  full  term  of  his  enlistment ;  and  such  soldier  shall 
be  tried  by  a  court=martial  and  punished,  although  the  term  of 
his  enlistment  may  have  elapsed  previous  to  his  being  appre- 
bended  and  tried. 

1  Dig.  Op.  J.  A.  G.  1090. 

3  Id.  1094;  In  re  Carver,  142  Fed.  Rep.  623. 
»  Sec.  1229,  R.  S. 

4  See  ante,  par.  66,  335. 

6  See  Chap.  XXXI,  Art.  103,  par.  810,  post;  ante,  par.  65,  186-193. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    379 

The  liability  to  make  good  to  the  United  States  the  time 
lost  in  desertion,  herein  enjoined,  is  independent  of  any 
punishment  which  may  be  imposed  by  court-martial  on 
conviction  of  the  offense;  it  need  not,  therefore,  be 
adjudged  or  mentioned  in  the  sentence.1 

The  time  passed  by  a  deserter  in  arrest  or  confinement 
under  sentence  cannot  be  required  to  be  made  good  to  the 
United  States;  such  time  not  being  a  time  of  military 
service,  but  of  punishment.2  But  time  lost  through 
desertion  must  be  made  good  if  the  deserter  accepts  par- 
don, or  restoration  to  duty,  without  trial.3  If,  however, 
he  is  tried  and  the  sentence  is  disapproved,  the  effect  is 
the  same  as  an  acquittal,  and  the  obligation  of  additional 
service  is  not  incurred.4 

The  United  States  may  waive  the  liability  imposed  by 
the  Article  to  make  good  the  time  lost  in  desertion,  and 
it  is  in  fact  waived  when  the  deserter,  without  being 
required  to  perform  the  service,  is  legally  discharged  by 
proper  authority,  or  dishonorably  discharged  through  the 
duly  approved  sentence  of  a  court-martial.5 

The  liability  to  trial  and  punishment  is  subject  to  the 
provisions  of  the  statute  of  limitation.6 

756.  Art.  49.  Any  officer  who,  having  tendered  his  resigna- 
tion,  quits  his  post  or  proper  duties,  without  leave,  and  with  in= 
tent  to  remain  permanently  absent  therefrom,  prior  to  due  notice 
of  the  acceptance  of  the  same,  shall  be  deemed  and  punished 
as  a  deserter. 

An  officer  of  the  Army,  being  in  the  service  of  the  United 
States,  cannot  legally  separate  himself  therefrom  of  his 
own  volition.  By  sending  in  his  resignation  he  does  not 
thereby  sever  himself  from  his  service  or  duty.  His 

1  Dig.  Op.  J.  A.  G.  64  and  note;  A.  R.  129. 

2  Dig.  Op.  J.  A.  G.  66. 

3  id.  71-72. 

4  Id.  64. 

6  Id.  68;  see  ante,  par.  360. 

8  See  ante,  par.  65,  360;  post,  Chap.  XXXI,  Art.  103,  par.  810. 


380  MILITARY  LAW 

separation  takes  effect  only  when  such  resignation  has 
been  accepted  and  he  has  received  due  notice  of  such 
acceptance.  If,  therefore,  he  quits  his  post  or  proper 
duties  before  such  notice,  with  the  intent  of  remaining 
permanently  absent  therefrom,  he  is  guilty  of  desertion. 
The  "intent"  is  the  important  element  of  the  offense, 
and  may  be  proved,  as  in  the  case  of  enlisted  men,  by  the 
circumstances  connected  with  the  leaving  and  the  absence. 

757.  Art.  50.  No  noncommissioned  officer  or  soldier  shall 
enlist  himself  in  any  other  regiment,  troop,  or  company,  without 
a  regular  discharge  from  the  regiment,  troop,  or  company  in 
which  he  last  served,  on  a  penalty  of  being  reputed  a  deserter, 
and  suffering  accordingly.  And  in  case  any  officer  shall  know= 
ingly  receive  and  entertain  such  noncommissioned  officer  or 
soldier,  or  shall  not,  after  his  being  discovered  to  be  a  deserter, 
immediately  confine  him  and  give  notice  thereof  to  the  corps  in 
which  he  last  served,  the  said  officer  shall,  by  a  court=martial, 
be  cashiered. 

Deserters  from  one  organization  of  the  Army  do  not 
compensate  for  their  offense  by  enlisting  for  service  in 
another.  The  penalty  for  such  an  act  is  that  of  being 
reputed  and  punished  as  a  deserter  from  the  first  organ- 
ization. The  re-enlistment  in  another  organization  is 
prima  facie  evidence  of  desertion,  in  that  it  shows  an 
evident  intent  not  to  return  to  his  proper  command  and 
duty  from  which  he  has  absented  himself  without  leave. 

"An  enlistment  in  violation  of  this  Article  is  not  void, 
but  voidable  at  the  option  of  the  United  States  only. 
Until  so  avoided  service  under  it  is  valid  service.  On  trial 
for  an  offense  committed  during  such  enlistment,  a  plea 
by  the  accused,  in  bar  of  trial,  that  this  enlistment,  being 
fraudulent  on  his  part,  is  void,  should  not  be  sustained."  J 

To  prevent  and  punish  the  act  herein  prohibited  it  is 
made  the  duty  of  any  officer  knowing  of  it,  or  discovering 
such  deserter,  immediately  to  confine  him  and  give  notice 

1  Dig.  Op.  J.  A.  G.  76. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    381 

thereof  to  the  corps  in  which  he  last  served,  under  penalty 
of  being  " cashiered/'  and  such  sentence  is  mandatory 
upon  conviction. 

758.  Art.  51.  Any  officer  or  soldier  who  advises  or  persuades 
any  other  officer  or  soldier  to  desert  the  service  of  the  United 
States,  shall,  in  time  of  war,  suffer  death,  or  such  other  punish= 
ment  as  a  court=martial  may  direct;  and  in  time  of  peace,  any 
punishment,  excepting  death,  which  a  court=martial  may  direct. 

"To  constitute  the  offense  of  ' advising  to  desert/  it 
is  not  essential  that  there  should  have  been  an  actual 
desertion  of  the  party  advised.  But  it  is  otherwise  as  to 
the  offense  of  'persuading  to  desert';  to  complete  this 
offense  the  persuasion  should  have  induced  the  act."  l 

By  provision  of  law,  "Every  person  who  entices  or  pro- 
cures, or  attempts,  or  endeavors  to  entice  or  procure,  any 
soldier  in  the  military  service  of  the  United  States,  or  who 
has  been  recruited  for  such  service,  to  desert  therefrom,  or 
who  aids  any  such  soldier  in  deserting,  or  attempting  to 
desert  from  such  service,  or  who  harbors,  conceals,  pro- 
tects, or  assists  any  such  soldier  who  may  have  deserted 
from-  such  service,  knowing  him  to  have  deserted  there- 
from, or  who  refuses  to  give  up  and  deliver  such  soldier  on 
the  demand  of  any  officer  authorized  to  receive  him,  shall 
be  punished  by  imprisonment  not  less  than  six  months 
nor  more  than  two  years,  and  by  a  fine  not  exceeding  five 
hundred  dollars."  2  The  trial  in  such  case  is  by  courts 
of  the  United  States,  and  not  by  court-martial. 


759.  Art.  52.  It  is  earnestly  recommended  to  all  officers  and 
soldiers  diligently  to  attend  divine  service.  Any  officer  who 
behaves  indecently  or  irreverently  at  any  place  of  divine  worship 
shall  be  brought  before  a  general  court=martial,  there  to  be  pub- 
licly and  severely  reprimanded  by  the  president  thereof.  Any 
soldier  who  so  offends  shall,  for  his  first  offense,  forfeit  one 

1  Dig.  Op.  J.  A.  G.  77.  '  Sec.  5455,  Rev.  Stat,  U  S. 


382  MILITARY  LAW 

sixth  of  a  dollar ;  for  each  further  offense  he  shall  forfeit  a  like 
sum,  and  shall  be  confined  twenty=four  hours.  The  money  so 
forfeited  shall  be  deducted  from  his  next  pay,  and  shall  be  applied, 
by  the  captain  or  senior  officer  of  his  troop,  battery,  or  company, 
to  the  use  of  the  sick  soldiers  of  the  same. 

All  officers  and  soldiers  are  recommended  to  attend 
divine  service,  but,  in  accordance  with  the  spirit  of  our 
institutions,  there  being  no  " state  church"  or  required 
religion,  each  one  is  free  to  follow  his  own  religious  con- 
victions. This  freedom  to  worship  the  Supreme  Being 
according  to  one's  own  convictions  is  entitled  not  only  to 
respect  but  protection,  and  any  indecent  behavior  at  any 
place  of  divine  worship  makes  the  officer  or  soldier  offend- 
ing subject  to  trial  by  court-martial,  and  punishment 
under  this  Article.  The  general  sense  of  respect  for  the  in- 
dividual and  collective  religious  belief  of  others  is,  however, 
so  universal  that  this  Article  is  practically  obsolete. 

760.  Art.  53.     Any  officer  who  uses  any  profane  oath  or  ex- 
ecration shall,  for  each  offense,  forfeit  and  pay  one  dollar.     Any 
soldier  who  so  offends  shall  incur  the  penalties  provided  in  the 
preceding   article;     and   all   moneys   forfeited   for   such   offenses 
shall  be  applied  as  therein  provided. 

The  prohibition  of  the  use  of  profane  oaths  or  execra- 
tions is  of  like  tenor  with  the  purpose  of  the  preceding 
Article  in  its  requirement  of  observance  of  reverence  for 
the  Deity  and  a  respect  for  the  feelings  of  those  to  whom 
profane  words  are  distasteful  and  obnoxious. 

PRESERVATION  OF  ORDER;  PROTECTION  OF  PROPERTY, 

ETC. 

761.  Art    54.     Every  officer  commanding  in   quarters,   garri= 
son,  or  on  the  march,  shall  keep  good  order,  and,  to  the  utmost 
of  his  power,  redress  all  abuses  or  disorders  which  may  be  com= 
mitted  by  any  officer  or  soldier  under  his  command ;  and  if,  upon 
complaint  made  to  him  of  officers  or  soldiers    beating  or  other- 
wise ill=treating  any  person,  disturbing  fairs  or  markets,   or  com- 
mitting any  kind  of  riot,  to  the  disquieting  of  the  citizens  of  the 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    383 

United  States,  he  refuses  or  omits  to  see  justice  done  to  the  of- 
fender, and  reparation  made  to  the  party  injured,  so  far  as  part  of 
the  offender's  pay  shall  go  toward  such  reparation,  he  shall  be 
dismissed  from  the  service,  or  otherwise  punished,  as  a  court- 
martial  may  direct. 

A  discussion  of  this  Article  and  a  statement  of  the 
method  of  procedure  under  it  has  already  been  made  in 
Chapter  XXVIII,  par.  531-536. 

762.  Art.  55.     All  officers  and  soldiers  are  to   behave  them= 
selves  orderly  in  quarters  and  on  the  march;    and  whoever  com- 
mits  any  waste  or  spoil,  either  in  walks  or  trees,  parks,  warrens, 
fish  ponds,  houses,  gardens,  grain  fields,  inclosures,  or  meadows, 
or  maliciously  destroys  any  property  whatsoever  belonging  to  in- 
habitants  of  the  United  States,  (unless  by  order  of  a  general  officer 
commanding  a  separate  army  in  the  field,)  shall,   besides  such 
penalties  as  he  may  be  liable  to  by  law,  be  punished  as  a  court- 
martial  may  direct. 

This  Article,  intended  to  prevent  the  wasteful,  wanton, 
or  malicious  destruction  of  property  belonging  to  the  in- 
habitants of  the  United  States,  makes  a  special  exception 
in  its  provisions  for  the  protection  of  any  officer  or  soldier 
destroying  such  property  by  order  of  "a  general  officer 
commanding  a  separate  army  in  the  field,"  and  it,  there- 
fore, permits  of  such  order  being  pleaded  in  bar  of  trial; 
the  responsibility  for  the  acts  being  transferred  to  the 
general  officer  g'.ving  the  order.1 

The  person  offending,  in  addition  to  his  military  re- 
sponsibility, is  liable  to  such  penalty  as  may  be  inflicted 
under  the  laws  of  the  land  applying  to  such  acts  as  are 
herein  named. 

763.  Art.  56.     Any  officer  or  soldier  who    does    violence   to 
any  person  bringing  provisions  or  other  necessaries  to  the  camp, 
garrison,  or  quarters  of  the  forces  of  the  United  States  in  foreign 
parts,  shall  suffer  death,  or  such  other  punishment  as  a  court= 
martial  may  direct. 

The  tendency  to  violence  on  the  part  of  troops  would 
1  Davis'  Mil.  I,aw,  p.  437. 


384  MILITARY  LAW 

probably  be  greater  in  foreign  parts  than  in  their  own 
country,  and  therefore  the  necessity  for  their  restraint 
under  severe  penalty  when  so  serving.  The  "violence" 
would  apply  to  any  act  punishable  at  the  common  law, 
such  as  robbery,  or  assault  by  any  form  of  physical  attack, 
upon  the  persons  as  to  whom  it  is  prohibited.  The  pro- 
tection extends  to  the  party  bringing  provisions,  etc.,  not 
only  while  within  the  limits  of  the  camp  or  garrison,  but 
while  going  to  or  returning  therefrom.1 

764.  Art.  57.  Whosoever,  belonging  to  the  armies  of  the 
United  States  in  foreign  parts,  or  at  any  place  within  the  United 
States  or  their  Territories  during  rebellion  against  the  supreme 
authority  of  the  United  States,  forces  a  safe=guard,  shall  suffer 
death.2 

The  word  "safe-guard"  has  a  meaning  distinct  and 
separate  from  that  of  a  sentinel  or  guard.  "By  the  laws 
of  nations,  a  ' safe-conduct '  or  ' safe-guard'  has  ever  been 
respected,  and  the  violation  thereof  resented  with  the 
keenest  jealousy,  more  so  even  than  the  infraction  of  a 
flag  of  truce."  3 

The  grave  character  of  the  offense  is  indicated  by  the 
severe  penalty  of  death,  which  is  mandatory  upon  con- 
viction of  the  accused.  "The  crime  consists  in  the  con- 
tempt of  the  supreme  military  authority,  to  the  endanger- 
ing of  the  public  interests;  whether  such  authority  be 
exercised  directly  or  representatively."  4 

It  is  essential  to  conviction  of  the  offense  that  it  be 
proved  that  the  accused  had  knowledge  of  the  fact  of  the 
safe-guard,  either  from  the  person  bearing  it,  the  sentinel, 
or  other  guard  acting  as  such,  or  by  its  publication  so 
that  it  had  come  to  his  personal  knowledge  before  its 
violation. 

1  Samuel,  p.  566. 

2  See  ante,  par.  330. 
8  Simmons,  Sec.  204. 
4  Samuel,  p.  569. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     385 


JURISDICTION   OF   COURTS-MARTIAL   IN   TIME   OF  WAR 

765.  Art.  58.  In  time  of  war,  insurrection,  or  rebellion, 
larceny,  robbery,  burglary,  arson,  mayhem,  manslaughter,  mur- 
der, assault  and  battery  with  intent  to  kill,  wounding,  by  shoot- 
ing or  stabbing,  with  an  intent  to  commit  murder,  rape,  or 
assault  and  battery  with  an  intent  to  commit  rape,  shall  be  punish- 
able by  the  sentence  of  a  general  court=martial,  when  committed 
by  persons  in  the  military  service  of  the  United  States,  and  the 
punishment  in  any  such  case  shall  not  be  less  than  the  punishment 
provided,  for  the  like  offense,  by  the  laws  of  the  State,  Territory, 
or  District  in  which  such  offense  may  have  been  committed.  1 

The  jurisdiction  conferred  upon  courts-martial  by  this 
Article  has  been  held  to  be  not  exclusive,  but  concurrent 
with  that  of  civil  tribunals;  the  word  " shall"  in  the 
term  " shall  be  punishable"  is  construed  as  equivalent 
to  may? 

By  the  terms  of  the  Article  its  provisions  are  limited 
to  "time  of  war,  insurrection,  or  rebellion,"  and  to  " per- 
sons in  the  military  service  of  the  United  States";  the 
sentences  being  those  of  a  military  court  and  not  of  a 
civil  court,  civil  disability  does  not  attach  to  the  person 
upon  conviction.3 

Though  the  punishment  must  not  be  "less,"  it  may 
legally  be  of  greater  severity  than  that  provided  by  the 
local  statute.4 

While  the  various  crimes  are  enumerated,  there  is  no 
statutory  provision  as  to  what  shall  constitute  the  crime, 
and  therefore  we  must  look  to  the  common  law  definitions 
of  them  to  ascertain  the  elements  and  facts  necessary  to 
be  proved  to  constitute  the  offense  in  each  case. 

Larceny. — Larceny,  at  common  law,  is  the  felonious 
taking  and  carrying  away  of  the  personal  property  of 
another  without  his  consent  and  against  his  will,  with 
the  intent  to  convert  it  to  the  taker's  own  use,  or  to 

1  See  ante,  par.  60  and  316,  et  seq.  3  Id.  93. 

3  Dig.  Op.  J.  A.  G.  87.  4  Id.  90. 


386  MILITARY  LAW 

deprive  the  owner  of  the  property.  The  taking  must  be 
felonious,  that  is,  with  the  " intent"  of  stealing;  a  simple 
removal  of  property  with  no  such  intent  would  be  trespass 
only.1 

Under  the  common  law  as  received  from  England, 
larceny  was  divided  into  two  classes,  grand  and  petit. 
The  distinction  between  the  two  lies  in  the  the  value  of 
the  property  taken. 

The  offense  of  taking,  etc.,  is  the  same  in  each,  but 
petit  larceny  is  now  classed,  in  most  of  the  United  States, 
as  a  misdemeanor  and  is  determined  by  statute  which 
fixes  a  limit  of  value  of  the  property  taken  necessary  to 
constitute  grand  larceny. 

Where  there  is  a  statute  defining  petit  and  grand  larceny 
and  fixing  the  limits  of  the  value  of  property  taken  which 
will  constitute  each,  the  court-martial,  in  awarding  punish- 
ment, should  take  into  consideration  the  value  of  the 
property  taken  as  proved  by  the  evidence,  and  base  its 
sentence  upon  the  laws,  relating  to  the  offense,  of  the  lo- 
cality where  it  was  committed.  In  all  charges  and  specifi- 
cations, therefore,  drawn  for  the  offense  of  " larceny"  not 
only  the  articles  taken  should  be  named  but  their  value 
be  stated,  and  proved  to  the  court.2 

Robbery. — Robbery,  at  common  law,  is  the  felonious 
and  forcible  taking  of  anything  of  value,  the  property  of 
another,  from  his  person,  or  in  his  presence,  against  his 
will,  by  violence  or  by  putting  him  in  fear.  It  is,  there- 
fore, larceny  accompanied  by  violence  against  a  person, 
or  by  putting  him  in  fear.3 

The  animus  furandi,  or  felonious  intent,  must  be  present, 
which,  taken  together  with  the  force  used  against  the 
person,  or  the  putting  him  in  fear,  constitutes  the  offense 

1  See  Bouvier,  Law  Dictionary,  Rev.  Ed. 

2  See  Form,  Appendix  E,  1. 

3  Wharton,  Cr.  Law,  Sec.  846;  Am.  and  Eng.  Enc.  of  Law,  Vol.  24, 
p.  992. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    387 

and  must  be  charged  and  proved  by  the  evidence.  The 
larceny  element  of  the  offense  in  robbery  is  not  divisible 
into  grand  and  petit;  it  is  necessary,  however,  to  show 
that  the  articles  taken  had  a  value. 

Burglary. — Burglary,  at  common  law,  is  the  breaking 
and  entering  the  dwelling-house  of  another  in  the  night- 
time, with  intent  to  commit  a  felony  therein,1  and  the 
offense  is  complete  whether  the  intended  felony  be  exe- 
cuted or  not.2 

There  must  be  a  " breaking"  as  well  as  an  "entry." 
Actual  "breaking"  as  applied  to  burglary  means  the 
making  of  an  opening  or  mode  of  entrance  into  a  build- 
ing by  force,  but  does  not  necessarily  contemplate  the 
destruction  of  any  of  its  parts.  The  lifting  of  a  latch,  or 
drawing  of  a  bolt,  removing  a  pane  of  glass  or  a  grating,  or 
pushing  open  a  screen  door  closed  by  spring  hinges,  and 
the  slightest  force  applied,  have  been  held  to  constitute  a 
"breaking."3 

There  is  a  constructive  breaking  where  admission  is 
gained  by  fraud,  artifice,  conspiracy,  deceit,  or  threats, 
there  being  no  actual  force  used.4  But  where  an  entry 
is  made  by  consent  of  the  person  occupying  the  house, 
the  offense  cannot  be  established.5 

In  common  law  the  offense  must  have  been  committed 
at  night,  and  the  building  be  a  "dwelling-house  ";  and  .by 
this  is  meant  a  place  used  for  habitation,  and  it  includes  the 
entire  cluster  of  buildings,  not  separated  by  a  public  way, 
which  are  used  for  purposes  connected  with  habitation.6 

It  is  not  essential  to  constitute  the  crime  that  the  occu- 
pant should  be  actually  in  the  house  at  the  time.7 

1  Bishop,  New  Cr.  Law,  Voh  1,  Sec.  559. 

2  Am.  and  Eng.  Enc.  of  Law,  Vol.  5,  p.  44. 
8  Id.,  pp.  45-46. 

4  Id.,  p.  17. 

"Id.,  pp.  50-51. 

8  Id.;  Bishop,  New  Cr.  Law,  Vol.  1,  Sec.  577  (4). 

7  Am.  and  Eng.  Enc.  of  Law,  Vol.  5,  p.  53,  note. 


388  MILITARY  LAW 

The  common  law  definition  of  burglary  has  been  modi- 
fied by  statutes  in  the  different  States  so  as  to  include 
offenses  committed  by  day  as  well  as  by  night,  and  in 
other  buildings  than  dwelling-houses,  and  various  degrees 
of  the  crime  have  been  established,  with  corresponding 
degrees  of  punishment.  But  the  common  law  definition 
still  prevails  before  courts-martial. 

The  fact  of  the  breaking  and  entry  of  a  dwelling-house  at 
night,  with  intent  to  commit  felony,  must  be  proved 
before  the  court.  The  intent  may  be  shown  from  the 
circumstances  attending  the  commission  of  the  offense. 
Where  such  intent  cannot  be  established  the  act  of  forcible 
entry  constitutes  a  trespass.1 

Arson. — Arson  is  the  wilful  and  malicious  burning  of 
another's  house.2  The  offense,  originally  limited  by  com- 
mon law  to  the  " house"  of  another,  has  been  made  by 
statutes  to  include  the  burning  of  shops  and  other  struc- 
tures not  used  for  habitation.3 

The  " house  "  of  another  must  be  burned  to  constitute 
arson  at  the  common  law,  but  the  term  "  house  "  com- 
prehends not  only  the  very  mansion-house,  but  all  out- 
houses which  are  a  parcel  thereof,  though  not  contiguous 
to  it  or  under  the  same  roof,  such  as  a  barn,  stable,  cow- 
house, sheep-house,  dairy-house,  well-house,  and  the 
like,  being  within  the  curtilage,  or  same  common  fence, 
as  the  mansion  itself.4  By  " curtilage"  is  meant  the 
space  immediately  surrounding  a  dwelling-house,  con- 
tained within  the  same  enclosure. 

A  ^dwelling-house"  is  any  structure  occupied  wholly 
or  in  part  by  any  person  or  persons  as  a  place  of  abode, 
together  with  all  out-houses  connected  therewith  and 


1  Davis'  Mil.  Law,  p.  445. 

2  Bishop,  New  Cr.  Law,  Vol.  1,  Sec.  559. 

3  Id.,  Sec.  564;    Clark,  Cr.  Law,  pp.  226,  229. 

4  Bouvier,  Law  Dictionary;  Clark,  Cr.  Law,  p.  227. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     389 

situated  within  the  curtilage.1  Temporary  absence,  or 
any  absence  with  intent  to  return,  does  not  affect  the 
character  of  the  house.2 

There  must  be  an  actual  burning  to  constitute  the 
offense,  but  it  is  not  necessary  that  the  building  be  wholly 
consumed  or  even  materially  injured.  If  any  part,  how- 
ever small,  is  consumed  it  is  sufficient,  and  "  charring  " 
constitutes  "burning."3 

When  committed  upon  territory  within  the  exclusive 
jurisdiction  of  the  United  States,  or  upon  a  vessel  of  war 
which  is  not  within  the  jurisdiction  of  any  State,  the 
offense  of  arson  is  punishable  under  statutory  provisions 
by  death;4  and  where  buildings,  timber,  vessels,  or  prop- 
erty other  than  that  which  can  be  classed  under  the  head 
of  "  dwelling-house  "  is  maliciously  set  fire  to  or  burned, 
the  penalty  is  a  fine  of  not  more  than  five  thousand  dol- 
lars, and  imprisonment  at  hard  labor  not  more  than  ten 
years.5 

The  " intent"  which  is  an  essential  part  of  the  offense 
must  be  proved  in  order  to  convict  the  accused  of  the 
crime. 

Mayhem. — Mayhem,  at  common  law,  is  the  act  of  un- 
lawfully and  violently  doing  injury  to  any  part  of  a  man's 
body,  whereby  he  is  rendered  less  able,  in  fighting,  to  de- 
fend himself  or  annoy  his  adversary.6  If  the  injury 
merely  disfigures  him  without  impairing  his  physical 
abilities  it  is  not  mayhem.  But,  by  statute  the  offense 
has  been  extended  to  cover  injuries  which  are  merely  dis- 
figuring; and  it  has  been  made  a  felony  in  some  States, 
and  a  misdemeanor  in  others,  so  that  the  punishment 


1  Am.  and  Eng.  Enc.  of  Law   Vol.  2,  p.  925. 

2  Id.,  p.  927. 

3  Id.,  p.  923. 

4  Sec.  5385,  R.  S. 
6  Sec.  5386,  R.  S. 

6  Clark,  Cr.  Law,  p.  182;  Bishop,  New  Cr.  Law,  Sec.  547. 


390  MILITARY  LAW 

therefor  varies  with  the  status  of  the  offense  under  the 
laws  of  the  State  in  which  the  offense  is  committed. 

Homicide. — Manslaughter  and  murder  are  both  in- 
cluded in  the  general  term  "homicide." 

Homicide  is  the  killing  of  any  human  being,  and  it 
may  be  either  "excusable/'  "felonious,"  or  "justifiable." 

Excusable  homicide  is  that  which  takes  place  under 
such  circumstances  of  accident  or  necessity  that  the 
party  cannot  strictly  be  said  to  have  committed  the  act 
wilfully  and  intentionally,  and  whereby  he  is  relieved 
from  the  penalty  annexed  to  the  commission  of  felonious 
homicide, — as  in  the  accidental  killing  of  a  person  while 
driving  a  horse  which  gets  beyond  control,  or  where  the 
danger  was  seen  but  with  due  care  on  his  part  the  driver 
could  not  avoid  it. 

Felonious  homicide  is  that  committed  wilfully,  under 
such  circumstances  as  render  it  punishable,  as  where 
there  is  an  intent  to  commit  a  felony,  and  in  carrying  it 
out  a  person  is  killed. 

Justifiable  homicide  is  that  connected  with  a  full  in- 
tent but  under  such  circumstances  of  duty  as  to  render 
the  act  one  proper  to  be  performed.  An  example  of  such 
homicide  is  the  taking  of  life  in  execution  of  the  law,  or 
the  killing  of  a  member  of  the  belligerent  force  of  an 
enemy  in  war.1 

Manslaughter. — Manslaughter,  at  common  law,  is  the 
unlawful  killing  of  another,  without  malice,  either  express 
or  implied.  It  is  distinguished  from  murder  by  the  ab- 
sence of  malice. 

It  has  been  divided  by  writers  on  criminal  law  into 
two  classes,  voluntary  and  involuntary. 

Voluntary  manslaughter  is  such  as  happens  voluntarily 
or  with  an  intention  to  produce  injury,  and  it  is  that  which 
is  committed  in  the  heat  of  sudden  passion,  in  the  course 

1  Bouvier,  Law  Dictionary. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     391 

of  sudden  fighting,  or  under,  and  as  a  result  of,  immediate 
and  strong  provocation.  The  provocation,  however,  must 
not  be  sought  or  induced  as  an  excuse  for  killing  or  doing 
bodily  harm,  and  must  be  such  as  the  law  deems  adequate 
to  deprive  a  reasonable  man  of  the  power  of  self-control, 
but  it  need  not  be  such  as  to  entirely  dethrone  the  reason ; 
and  no  provocation  will  reduce  homicide  to  manslaughter 
if  the  accused  was  actuated  by  malice.  Mere  words  or 
gestures,  however  insulting  or  abusive,  or  trespass  or  in- 
jury to  property,  or  breach  of  contract,  will  not  consti- 
tute sufficient  provocation  to  reduce  homicide  to  man- 
slaughter.1 

Involuntary  manslaughter  is  where  death  is  uninten- 
tionally caused,  either  (a)  in  the  commission  of  an  unlaw- 
ful act  not  amounting  to  felony,  nor  likely  to  endanger 
life,  or  (6)  by  culpable  neglect  of  a  legal  duty,  as  by  negli- 
gence in  performing  a  lawful  act,  or  by  neglect  to  perform 
an  act  required  by  law.2 

If  a  person,  in  doing  a  lawful  act,  culpably  neglects  to 
take  precautions  to  prevent  injury,  and  by  reason  of  such 
neglect  another  is  killed,  it  is  involuntary  manslaughter. 
So  a  person  charged  with  a  legal  duty,  as  a  railroad  em- 
ployee whose  duty  it  is  to  signal  trains  or  manage  switches, 
or  to  warn  persons  at  railroad  crossings  of  the  approach 
of  trains,  is  guilty  of  manslaughter  if  he  neglects  to  per- 
form it,  and  death  results.3 

The  duty  must  be  a  legal  one  as  distinguished  from  a 
moral  duty.  It  might  be  a  moral  duty  to  rescue  a  man 
from  drowning,  but  it  would  not  be  manslaughter  if  a  per- 
son failed  to  do  so. 

Where  a  military  superior,  in  enforcing  discipline,  is 
induced  to  take  the  life  of  an  inferior,  when  less  extreme 
measures  of  prevention  or  restraint  are  available,  his 

1  Clark.  Cr.  Law,  pp.  165-172. 

2  Id.,  p.  172. 

3  Id.,  p.  177. 


392  MILITARY  LAW 

act  is  without  justification,  and  he  is  guilty  of  man- 
slaughter; so  also  where  a  superior,  by  the  exercise  of  an 
unduly  severe  measure  of  discipline,  or  the  infliction  of  an 
excessive  punishment,  causes  presently  or  eventually,  the 
death  of  an  inferior,  he  is  chargeable  with  involuntary 
manslaughter.  And  the  legal  crime  will  be  the  same  where 
the  superior  causes  the  death  of  another  by  reason  of 
negligence,  in  not  properly  regulating  the  use  of  firearms 
in  his  command, — as  in  target  firing  or  artillery  practice.1 

Murder. — Murder  is  the  unlawful  killing  of  another 
human  being,  with  malice  aforethought. 

A  homicide  is  committed  with  malice,  either  express  or 
implied,  when  there  is  an  actual  intention  to  cause  the 
death  of  the  person  killed  or  of  some  other  person,  or  to 
cause  such  bodily  injury  as  the  doer  of  the  act  knows 
is  likely  to  cause  death,  or  as  is  sufficient  to  cause  death 
in  the  ordinary  course  of  nature.  It  also  exists  where  one 
deliberately  perpetrates  a  cruel  and  wanton  act  against 
another  resulting  in  his  death,  or  where  death  is  uninten- 
tionally caused  in  the  commission  of  another  felony,  or 
where  death  is  caused  in  resisting  a  lawful  arrest,  or  a  law- 
ful attempt  to  suppress  a  riot  or  affray.  Murder  is  a 
felony  at  common  law,  and  is  punishable  by  death.2 
Where  death  results  eventually  from  injury  done  it  must 
occur  within  a  year  and  a  day  after  the  date  of  the  act 
to  constitute  murder. 

Where  the  act  is  committed  in  one  State  or  district 
and  the  death  occurs  in  another,  the  place  where  the  blow 
is  received  and  the  act  took  effect  is  the  place  of  the 
murder  or  homicide.  Thus,  when  a  person  on  one  side 
of  a  boundary  line  shoots  a  person  on  the  other  side  he  is 
amenable  in  that  jurisdiction  where  the  shot  w.as  received.3 

1  Winthrop,  Vol.  1,  p.  968. 

2  Clark,  Or.  Law,  pp.  158-159. 

3  See  Wharton,  Cr.  Law,  Vol.  1,  Sec.  279;  Bishop,  Cr.  Proc.,  Vol.  1, 
Sec.  52. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     393 

The  " malice  aforethought,"  express  or  implied,  is  essen- 
tial to  the  crime.  In  the  sense  here  used  " malice"  does 
not  necessarily  mean  hatred,  or  personal  ill-will,  nor  an 
actual  intent  to  take  life;  it  signifies  the  intent  from  which 
flows  any  unlawful  and  injurious  act,  committed  without 
legal  justification,  and  is  sometimes  a  mere  inference  of 
law  from  facts  proved.1  It  may  be  established  by  inde- 
pendent testimony,  or  may  be  inferred  when  the  fact  of 
the  killing  is  proved  by  satisfactory  evidence,  and  there 
are  no  circumstances  disclosed  tending  to  show  justifica- 
tion or  excuse,  and  there  is  nothing  to  rebut  the  natural 
presumption  of  malice.2 

The  corpus  delicti — the  fact  that  the  crime  has  actually 
been  committed — must  first  be  proved.  On  a  charge  of 
homicide,  the  accused  should  not  be  convicted  unless 
the  death  be  first  distinctly  proved,  either  by  direct  evi- 
dence of  the  fact  or  by  inspection  of  the  body  and  his 
guilty  agency  in  the  criminal  act  be  established.3  Should 
the  death  be  satisfactorily  proved,  the  identification  of  the 
body  thereafter  may  be  dispensed  with.4  By  the  stat- 
utes of  many  of  the  States  "murder  "  has  been  separated 
into  several  degrees;  but  no  such  separation  has  been 
made  by  the  United  States  statutes. 

The  penalty  for  murder  committed  on  the  high  seas,  or 
at  any  place  within  the  exclusive  jurisdiction  of  the  United 
States,  is  death.5 

Assault  and  Battery  with  Intent  to  Kill. — An  "as- 
sault" is  an  attempt  or  offer  to  do  unlawful  corporal  hurt 
to  another  by  violence.  A  "battery ' '  is  where  the  attempt 
or  assault  is  so  far  carried  out  that  some  force,  however 
slight,  is  applied  to  the  person  assaulted.6 

1  Bishop,  New  Cr.  Law,  Sec.  429;  Clark,  Cr.  Law,  p.  159. 

2  Davis'  Mil.  Law,  pp.  445-446. 

3  Starkie  on  Ev.,  10th  Ed.,  p.  861;  Wharton,  Cr.  Ev.,  Sec.  324-325. 


Davis'  Mil.  Law,  pp.  445-446. 
~      "          ~  r.,  10th  Ed.,  p. 
4  Wharton,  Cr.  Ev..  Sec.  326. 


6  Sec.  5339,  Rev.  Stat.  U.  S. 
8  Clark,  Cr.  Law,  pp.  198-199. 


394  MILITARY  LAW 

To  constitute  a  criminal  assault  there  must  be  at  least 
an  apparent  present  ability  to  commit  the  battery.  Mere 
preparations,  or  mere  words  and  threats,  whatever  may 
be  the  intention,  can  never  amount  to  an  assault;  there 
must  be  some  act  which  if  not  stopped  may  apparently, 
or  actually,  produce  injury.1 

Under  this  Article  of  War  the  "intent"  to  kill  is  an 

• 

essential  part  of  the  offense,  and  this  may  be  inferred  from 
the  character  and  the  circumstances  of  the  assault,  the 
use  of  a  deadly  weapon,  and  the  other  circumstances  con- 
nected with  it.  It  is  not  necessary  that  death  ensue. 

The  proof  of  the  offense  under  the  charge  must  be  such 
as  to  establish  the  fact  that  if  death  had  resulted  from  the 
act  the  accused  would  be  convicted  of  either  murder  or 
manslaughter.2 

Wounding  by  Shooting  or  Stabbing,  with  Intent  to 
Commit  Murder. — This  contemplates  an  aggravated 
assault  and  battery  with  a  weapon  by  means  of  which  a 
person  is  either  shot  or  stabbed,  and  is  especially  directed 
against  the  unlawful  use  of  those  weapons  most  likely  to 
be  in  the  hands  of  a  soldier.  This  form  of  injury,  together 
with  the  malice  attending  the  act,  which  accompanies 
the  intent  to  commit  murder,  and  which  distinguishes 
that  crime  from  manslaughter,  must  be  alleged  and 
proved. 

Rape. — Rape  is  the  carnal  knowledge  of  a  woman  by 
a  man  forcibly  and  unlawfully  against  her  will.  The 
force  may  be  actual  or  constructive,  and  the  act  must  be 

1  "The  drawing  of  a  sword  or  bayonet,  or  even  holding  up  a  fist  in 
a  menacing  manner,  throwing  a  bottle  or  glass  with  intent  to  wound 
or  strike,  presenting  a  gun  at  a  person  who  is  within  the  distance 
to  which  the  gun  will  carry,  pointing  a  pitchfork  at  a  person  who 
is  within  reach,  or  any  other  similar  act,  accompanied  with  such  cir- 
cumstances as  denote  at  the  time  an  intention,  coupled  with  a  present 
ability,  of  using  actual  violence  against  the  person  of  another,  will 
amount   to   assault."       (Clark,  Cr.  Law,  p.  199,   note;   1  Russ.  on 
Crimes  1019.) 

2  Am.  and  Eng.  Enc.  of  Law,  Vol.  2,  pp.  .969-970,  notes. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     395 

without  consent  on  the  part  of  the  woman.  Girls  under 
ten  years  of  age  at  common  law,  and  under  certain  ages 
as  regulated  by  the  statutes  of  the  different  States,  are 
incapable  of  giving  consent. 

To  prevent  the  act  from  being  rape  in  any  case  consent 
must  be  consciously  given  by  a  woman  of  capacity  to  con- 
sent, in  possession  of  her  rational  powers  and  intelligence. 
There  is  no  consent  if  the  woman  is  insane,  or  is  drunk,  or 
under  the  influence  of  a  drug  which  incapacitates  her  from 
intelligent  use  of  her  faculties. 

Assault  and  Battery  with  Intent  to  Commit  Rape.— 
The  offense  of  assault  and  battery  in  this  case  is  com- 
bined with  an  intent  to  commit  rape  and  to  overpower 
resistance.  If  the  intent  existed  and  be  proved  the  fact 
that  the  accused  afterward  desisted  or  changed  his  mind 
will  not  affect  the  crime.  Intent  will  be  demonstrated  by 
the  character  and  degree  of  violence  employed,  the  lan- 
guage used,  the  acts  and  circumstances  of  the  attempt.1 
But  the  evidence  must  establish  the  intent  beyond  a  rea- 
sonable doubt. 

In  all  the  offenses  charged  under  this  Article  the  allega- 
tion of  "intent"  is  essential  in  the  charges,  and  must  be 
proved  by  the  evidence  in  order  to  sustain  the  charge. 
Where  the  offense  charged  includes  a  lesser  kindred  one 
the  finding  of  not  guilty  of  the  offense  charged  but 
guilty  of  the  lesser  offense  may  be  made;  thus,  under  a 
charge  of  murder  there  may  be  a  finding  of  guilty  of  man- 
slaughter only;  under  a  charge  for  robbery  there  may  be 
a  finding  of  guilty  of  larceny;  and  so  for  each  offense 
which  includes  a  lesser  kindred  one.  But  there  can  be, 
in  the  finding,  no  separation  of  any  specific  crime  into 
degrees  thereof, — as  a  finding  of  guilty  of  murder  in  the 
second  degree  under  a  charge  of  " murder," — since  the 

1  Winthrop,  Vol.  1,  p.  989. 


396  MILITARY  LAW 

military  code  does  not  recognize  degrees  of  the  specific 
crimes  mentioned  in  this  Article.1 

The  fixing  of  a  minimum  punishment,  to  be  adjudged 
by  the  court-martial,  leaves  it  discretionary  with  the  court 
to  add  to  such  punishment  if  it  thinks  proper,  and  if 
such  addition  be  practicable.2  Whenever  the  civil  statute 
establishes  a  maximum  and  a  minimum  punishment  for 
the  offense  the  Article  will  be  satisfied  by  a  sentence  to 
the  minimum  term  thus  established,  though  the  sentence 
may  exceed  the  maximum.  Where  a  maximum  punish- 
ment only  is  established,  as  that  the  offender  shall  be 
punished  by  imprisonment  not  to  exceed  a  certain  number 
of  years,  or  by  a  fine  not  to  exceed  a  certain  sum  named, 
then  as  any  degree  of  the  punishment  within  such  limit 
is  legal,  the  court-martial  is  without  any  restriction,  under 
the  Article,  as  to  the  term  or  amount  it  shall  impose  by 
its  sentence.3 

The  local  laws  of  a  foreign  country  in  the  military  occu- 
pation of  the  United  States  in  time  of  war  are  not  "laws 
of  any  State,  Territory,  or  District,"  within  the  meaning 
of  this  Article,  and  its  provisions  will  not  apply  in  such 
case.4 

RESPONSIBILITY  FOR   CERTAIN   CRIMES   AND   OFFENSES 

* 

766.  Art.  59.  When  any  officer  or  soldier  is  accused  of  a 
capital  crime,  or  of  any  offense  against  the  person  or  property 
of  any  citizen  of  any  of  the  United  States,  which  is  punishable  by 
the  laws  of  the  land,  the  commanding  officer,  and  the  officers  of 
the  regiment,  troop,  battery,  company,  or  detachment,  to  which 
the  person  so  accused  belongs,  are  required,  except  in  time  of  war, 
upon  application  duly  made  by  or  in  behalf  of  the  party  injured, 
to  use  their  utmost  endeavors  to  deliver  him  over  to  the  civil 
magistrate,  and  to  aid  the  officers  of  justice  in  apprehending 
and  securing  him,  in  order  to  bring  him  to  trial.  If,  upon  such 
application,  any  officer  refuses  or  wilfully  neglects,  except  in 
time  of  war,  to  deliver  over  such  accused  person  to  the  civil  magis- 

1  Winthrop,  Vol.  1,  p.  989.  3  Id.,  p.  991. 

2  Id.,  p.  990.  4  Dig.  Op.  J.  A.  G.  92. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     397 

trates,  or  to  aid  the  officers  of  justice  in  apprehending  him,  he 
shall  be  dismissed  from  the  service.1 

It  is  a  fundamental  principle  of  government  under  our 
Constitution  that,  in  time  of  peace,  the  civil  power  shall 
be  supreme,  and  military  authority  subject  thereto.2 

In  the  application  of  this  principle,  however,  is  included 
the  fact  that  the  government  of  the  United  States  and 
that  of  a  State  are  distinct  and  independent  of  each  other 
within  their  respective  spheres  of  action,  although  existing 
and  exercising  their  powers  within  the  same  territorial 
limits.3  Therefore  each  must  be  recognized  by  the  other. 
In  all  territory  within  the  exclusive  jurisdiction  of  the 
United  States  its  own  courts  have  unquestioned  jurisdiction; 
the  courts  of  a  State  can  exercise  jurisdiction  over  persons 
residing  or  being  within  those  limits  only  for  crimes  com- 
mitted outside  thereof,  and  this  Article  provides  a  means 
by  which  offenders  may  be  secured  and  brought  to  trial 
before  State  courts  for  their  offences  against  State  laws, 
when  taking  refuge  within  places  subject  to  military 
jurisdiction. 

The  Territories  of  the  United  States  being  governed 
under  the  direct  provisions  of  Congress  enacted  therefor, 
the  judicial  power  is  derived  from  such  laws,  and  the 
courts  thereof  are  vested,  in  all  cases  arising  under  the 
Constitution  and  laws  of  the  United  States,  with  the  same 
jurisdiction  as  the  United  States  circuit  and  district 
courts;4  and  the  officers  and  soldiers  of  the  Army  within 
a  Territory  are  subject  to  its  criminal  laws  equally  with 
other  citizens. 

A  Territorial  statute  is  operative  upon  a  military  reserva- 
tion within  the  Territory  so  long  as  it  does  not  conflict 
with  the  laws  of  the  United  States,  or  with  the  military 

1  See  ante,  Chapter  IX. 

2  See  Dow  v.  Johnson.  100  U.  S.  169. 

•  Tarble's  Case,  13  Wall.  (80  U.  S.)  397. 
4  Sec.  1910,  Rev.  Stat. 


398  MILITARY  LAW 

administration  or  legitimate  operations  of  the  Govern- 
ment.1 

767.  Art.  60.  Any  person  in  the  military  service  of  the  United 
States  who  makes  or  causes  to  be  made  any  claim  against  the 
United  States,  or  any  officer  thereof,  knowing  such  claim  to  be 
false  or  fraudulent;  or 

[2]  Who  presents  or  causes  to  be  presented  to  any  person  in 
the  civil  or  military  service  thereof,  for  approval  or  payment, 
any  claim  against  the  United  States  or  any  officer  thereof,  know- 
ing  such  claim  to  be  false  or  fraudulent ;  or 

[3]  Who  enters  into  any  agreement  or  conspiracy  to  defraud 
the  United  States  by  obtaining,  or  aiding  others  to  obtain,  the 
allowance  or  payment  of  any  false  or  fraudulent  claim ;  or 

[4]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim  against 
the  United  States  or  against  any  officer  thereof,  makes  or  uses, 
or  procures  or  advises  the  making  or  use  of,  any  writing,  or  other 
paper,  knowing  the  same  to  contain  any  false  or  fraudulent  state= 
ment ;  or 

[5]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  tc 
obtain,  the  approval,  allowance,  or  payment  of  any  claim  against 
the  United  States  or  any  officer  thereof,  makes,  or  procures  or 
advises  the  making  of,  any  oath  to  any  fact  or  to  any  writing  or 
other  paper,  knowing  such  oath  to  be  false ;  or 

[6]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  ob= 
tain,  the  approval,  allowance,  or  payment  of  any  claim  against 
the  United  States  or  any  officer  thereof,  forges  or  counterfeits, 
or  procures  or  advises  the  forging  or  counterfeiting  of,  any  signa= 
ture  upon  any  writing  or  other  paper,  or  uses,  or  procures  or 
advises  the  use  of,  any  such  signature,  knowing  the  same  to  be 
forged  or  counterfeited ;  or 

[7]  Who,  having  charge,  possession,  custody  or  control  of  any 
money  or  other  property  of  the  United  States,  furnished  or  in*= 
tended  for  the  military  service  thereof,  knowingly  delivers,  or 
causes  to  be  delivered,  to  any  person  3  having  authority  to  receive 
the  same,  any  amount  thereof  less  than  that  for  which  he  receives 
a  certificate  or  receipt ;  or 

[8]  Who,  being  authorized  to  make  or  deliver  any  paper  certi- 
fying the  receipt  of  any  property  of  the  United  States,  furnished 
or  intended  for  the  military  service  thereof,  makes,  or  delivers 
to  any  person,  such  writing,  without  having  full  knowledge  of  the 

1  Dig.  Op.  J.  A.  G.  2437-2439.  For  discussion  of  the  method  of 
procedure,  etc.,  under  this  Article,  see  ante,  Chapter  IX. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     399 

truth  of  the  statements  therein  contained,  and  with  intent  to 
defraud  the  United  States;  or 

[9]  Who  steals,  embezzles,  knowingly  and  wilfully  misap= 
propriates,  applies  to  his  own  use  or  benefit,  or  wrongfully  or 
knowingly  sells  or  disposes  of  any  ordnance,  arms,  equipments, 
ammunition,  clothing,  subsistence  stores,  money,  or  other  prop- 
erty of  the  United  States,  furnished  or  intended  for  the  military 
service  thereof;  or 

[10]  Who  knowingly  purchases,  or  receives  in  pled*ge  for  any 
obligation  or  indebtedness,  from  any  soldier,  officer,  or  other 
person  who  is  a  part  of  or  employed  in  said  forces  or  service,  any 
ordnance,  arms,  equipments,  ammunition,  clothing,  subsistence 
stores,  or  other  property  of  the  United  States,  such  soldier,  officer, 
or  other  person  not  having  lawful  right  to  sell  or  pledge  the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprison- 
ment,  or  by  such  other  punishment  as  a  court=martial  may  ad- 
judge, or  by  any  or  all  of  said  penalties.  And  if  any  person, 
being  guilty  of  any  of  the  offenses  aforesaid,  while  in  the  mili= 
tary  service  of  the  United  States,  receives  his  discharge,  or  is  dis- 
missed from  the  service,  he  shall  continue  to  be  liable  to  be 
arrested  and  held  for  trial  and  sentence  by  a  court=martial,  in 
the  same  manner  and  to  the  same  extent  as  if  he  had  not  received 
such  discharge  nor  been  dismissed. 

This  Article  gives  jurisdiction  to  courts-martial  over  a 
number  of  offenses  which  involve  a  fraud  on  or  an  intent 
to  defraud  the  United  States. 

The  first  two  sections,  in  connection  with  the  final  sec- 
tion, provide  for  the  punishment  of  any  person  in  the 
military  service  of  the  United  States  who  makes  or  causes 
to  be  made,  or  presents  or  causes  to  be  presented,  for 
approval  or  payment,  any  claim  against  the  United  States 
or  any  officer  thereof,  knowing  such  claim  to  be  false 
or  fraudulent.  The  3d  and  4th  sections,  likewise,  in 
connection  with  the  final  section,  provide  for  the  punish- 
ment of  any  such  person  who  enters  into  any  agreement 
or  conspiracy  to  defraud  the  United  States  by  obtaining, 
or  aiding  others  to  obtain,  the  allowance  or  payment  of 
any  false  or  fraudulent  claim,  or  who,  for  the  purpose  of 
obtaining,  or  aiding  others  to  obtain,  the  approval,  allow- 


400  MILITARY  LAW 

ance,  or  payment  of  any  claim  against  the  United  States, 
or  any  officer  thereof,  makes  or  uses,  or  procures  or  ad- 
vises the  making  or  use  of,  any  writing  or  other  paper, 
knowing  the  same  to  contain  any  false  or  fraudulent 
statement.  This  includes  the  duplication  and  presenta- 
tion of  pay  accounts,  where  it  involves  a  false  or  fraudulent 
claim  against  the  United  States,  or  the  presenting  for  pay- 
ment of  false  vouchers,  or  the  signing  or  approving  of 
untrue  certificates,  vouchers,  accounts,  etc.;  the  procur- 
ing of  such  writings,  by  means  of  misrepresentation  and 
deceit,  to  be  approved  by  superior  officers;  the  procuring 
of  false  receipts,  vouchers,  or  statements  to  be  signed  by 
third  parties.1 

The  5th  section  provides  a  punishment  for  making 
false  oath  to  any  fact  or  to  any  writing  or  other  paper, 
knowing  it  to  contain  any  false  or  fraudulent  statement. 

False  swearing  is  a  false  declaration  on  oath,  which, 
while  not  within  any  common  law  or  statutory  designa- 
tion of  perjury,  is  by  statute  rendered  otherwise  indictable.2 
In  military  service  this  offense  is  chargeable  under  the 
62d  Article  of  War.3 

The  oath  indicated,  while  not  perjury  at  common  law, 
is  made  a  statutory  offense  by  this  Article,  and  is  closely 
assimilated  to  perjury  in  some  of  its  requisites.  Thus,  the 
oath,  as  in  perjury,  should  be  to  some  material  point, — 
that  is  to  say,  to  some  writing  or  statement  in  whole  or 
in  part  pertinent  to  the  proof  or  prosecution  of  the  claim 
presented, — and  should  be  taken  before  a  magistrate  or 
other  civil  official  legally  authorized  to  administer  an  oath.4 
Where,  by  law,  a  military  as  well  as  a  civil  official  is  au- 
thorized to  administer  an  oath,  false  swearing  may  be 
chargeable  under  this  Article. 

1  Winthrop,  Vol.  1,  p.  1007. 

2  Bishop,  New  Cr.  Law,  Vol.  2,  Sec.  1014. 

3  See  Art.  62,  par.  769. 

4  Winthrop,  Vol.  1,  p.  1008. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    401 

The  advising  or  procuring  of  the  making  of  a  false  oath 
is  assimilated  to  subornation  of  perjury.  But  the  oath 
herein  taken  and  violated  does  not  constitute  perjury. 

Perjury,  at  the  common  law,  is  the  wilful  giving,  under 
oath,  in  a  judicial  proceeding  or  course  of  justice,  of  false 
testimony  material  to  the  issue  or  point  of  inquiry.1 

Subornation  of  perjury  is  the  procuring  of  another  to 
commit  legal  perjury.  To  complete  the  offense  the  per- 
jury must  be  actually  committed.2 

"  False  swearing,  as  the  term  is  used  in  the  order  pre- 
scribing maximum  punishments,  means  (a)  taking  a  false 
oath  in  a  military  judicial  proceeding  as  to  a  matter 
not  material  to  the  issue;  (b)  taking  a  false  oath  other- 
wise than  in  a  judicial  proceeding,  before  a  person  legally 
authorized  to  administer  the  oath  and  under  circum- 
stances affecting  the  interests  of  the  military  service."  3 

False  swearing  by  an  officer  or  enlisted  man  before  a 
court-martial,  knowing  the  same  to  be  false,  whether  or 
not  as  to  matter  material  to  the  issue,  is  conduct  to  the 
prejudice  of  good  order  and  military  discipline  and  is 
cognizable  and  punishable  under  the  62d  Article  of 
War* 

To  sustain  the  charge  of  perjury,  the  evidence  of  two 
witnesses,  or  of  one  witness  with  strong  corroborating 
circumstances,  is  necessary  to  prove  the  falsity  of  what  was 
testified.5  But  this  rule  as  to  the  amount  of  evidence 
necessary  to  sustain  an  indictment  for  perjury  does  not 
govern  the  proof  required  in  case  of  false  swearing,  as 
an  offense  under  military  law.  "Such  offense  will  be, 
ordinarily,  sufficiently  established  by  the  written  record 
(or,  in  its  absence,  by  secondary  proof)  of  the  testimony 

1  Bishop,  New  Cr.  Law,  Vol.  2,  Sec.  1015. 

2  Clark,  Cr.  Law,  p.  330. 

3  Dig.  Op.  J.  A.  G.  1986. 

4  Id.  1985. 
6  Id.  1982. 


402  MILITARY  LAW 

given,  together  with  any  reliable  and  satisfactory  evidence 
that  the  same  was  knowingly  false."  l 

In  the  6th  section  the  offense  specifically  mentioned  is 
that  of  forging  or  counterfeiting,  or  procuring  or  advising 
others  to  forge  or  counterfeit,  or  to  use,  any  signature, 
knowing  the  same  to  be  forged  or  counterfeited,  upon 
any  writing  or  other  paper,  for  the  purpose  of  making  a 
fraudulent  claim  against  the  United  States. 

Forgery,  at  common  law,  is  the  false  making,  or  ma- 
terially altering,  with  intent  to  defraud,  of  any  writing 
which,  if  genuine,  might  apparently  be  of  legal  efficacy 
or  the  foundation  of  a  legal  liability.2 

Counterfeiting  is  distinguished  from  forgery  in  that  in 
the  former  there  must  be  a  resemblance  to  the  signature 
counterfeited,  while  in  forgery  no  such  resemblance  is 
requisite. 

The  thing  forged  or  counterfeited  under  this  Article  is 
the  " signature."  As  in  forgery  at  common  law,  it  should 
be  proved  that  the  falsified  signature  is  upon  a  paper 
which  is  material,  or  appears  upon  its  face  to  be  material, 
to  the  proof  of  the  claim,  so  as  to  be  capable  of  use  to 
effect,  or  contribute  to  effect,  some  fraud  against  the 
United  States  in  connection  with  it.  The  Iraud  need  not  be 
consummated ;  the  mere  making  of  the  false  signature  with 
the  illegal  purpose  constitutes  the  crime.3  The  using,  or 
procuring  or  advising  the  use  of,  such  signature  for  the 
purposes  stated  in  the  Article  is  equally  punishable  with 
the  forgery  or  counterfeiting  thereof. 

The  7th  section  provides  a  punishment  for  any  person 
in  the  military  service  in  charge,  possession,  custody,  or 
control  of  any  money  or  other  property  of  the  United 
States,  who  delivers,  to  any  person  having  authority  to 
receive  the  same,  any  less  amount  than  that  for  which  he 

1  Davis'  Mil.  Law   p.  456. 

2  Bishop,  New  O  Law,  Vol.  2,  Sec.  523. 

3  Winthrop,  Vol.  1   p.  1009. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     403 

receives  a  certificate  or  receipt,  or  who  knowingly  delivers, 
or  causes  to  be  delivered,  any  paper  certifying  to  the 
receipt  of  property,  without  having  full  knowledge  of 
the  truth  of  the  statements  therein,  and  with  intent  to 
defraud  the  United  States. 

The  criminality  of  any  person,  under  this  clause,  consists 
in  the  illegal  withholding  from  any  party  of  the  difference 
between  the  amount  of  money  or  other  property  delivered, 
and  the  amount  as  shown  on  the  face  of  the  receipt,  and 
the  converting  of  the  difference  to  his  own  use.  The 
offense  is  committed  whether  the  withholding  is  done  in 
collusion  with  the  other  party  or  without  his  knowledge. 
This  Article  prohibits,  by  inference,  the  taking  of  blank 
receipts  by  Army  officers  for  either  money  or  property. 

The  payment,  by  officers  charged  with  the  disbursement 
of  appropriations  made  by  act  of  Congress,  to  any  clerk 
or  other  employee  of  a  less  amount  than  the  receipt  or 
voucher  calls  for,  and  requiring  such  clerk  or  employee  to 
receipt  or  give  a  voucher  for  an  amount  greater  than  that 
actually  paid,  makes  them  liable  to  punishment  under 
provision  made  therefor.1 

The  8th  section  provides  a  penalty  for  any  person  in  the 
military  service  who,  being  authorized  to  make  or  deliver 
any  paper  certifying  to  the  receipt  of  any  property  of 
the  United  States,  makes  or  delivers  such  writing  to  any 
person  without  having  a  full  knowledge  of  the  truth  of  the 
statements  contained  therein,  with  intent  to  defraud  the 
United  States.  This  prevents  any  disclaimer  as  to  knowl- 
edge of  the  contents  of  any  such  paper  on  the  part  of  the 
party  delivering  or  certifying  it. 

In  the  9th  section  the  offenses  enumerated  are  punish- 
able whenever  they  are  committed  in  connection  with  the 
money  or  other  property  of  the  United  States,  furnished 
or  intended  for  use  in  the  military  service  thereof.  This 

1  Sec.  5483,  R.  S. 


404  MILITARY  LAW 

section  does  not  apply  to  other  property,  and  therefore 
larceny  of  such  other  property  can  only  be  charged  where 
it  is  prejudicial  to  good  order  and  military  discipline, 
under  the  62d  Article  of  War. 

" Stealing"  is  a  term  which  has  nearly  the  same  mean- 
ing as  larceny,  but  does  not  always  import  a  felony.  The 
58th  Article  of  War  gives  courts-martial  jurisdiction,  "in 
time  of  war/7  over  larceny,  with  other  crimes;  but  this 
Article  gives  jurisdiction  at  all  times  over  the  larceny  of 
"  public  property  furnished  or  intended  for  military  ser- 
vice." 

The  offense  will  also  lie  under  the  62d  Article  of  War, 
as  it  directly  affects  military  discipline.1 

" Embezzlement"  is  not  a  crime  at  common  law,  but  is 
a  statutory  crime.  It  is  the  fraudulent  appropriation  or 
conversion  to  his  own  use  of  money  or  other  property  by 
a  servant,  clerk,  trustee,  public  officer,  or  other  person, 
acting  in  a  fiduciary  capacity,  to  whom  the  property  has 
been  intrusted  by  or  for  the  owner.2  It  differs  from 
larceny  in  that  the  property  originally  comes  into  the 
possession  of  the  party  lawfully,  and  the  conversion  to 
his  own  use  is  made  while  it  is  in  his  possession. 

By  statutory  enactment  of  Congress  certain  acts  and 
failures  to  act  on  the  part  of  the  disbursing  officers  and 
other  officers  and  agents  of  the  United  States  have  been 
declared  to  constitute  embezzlement.3 

Among  these  are  the  following,  affecting  officers  of  the 
Army  or  military  agents  of  any  character,  viz.:  " Every 
disbursing  officer  of  the  United  States  who  deposits  any 
public  money  entrusted  to  him  in  any  place  or  in  any 
manner,  except  as  authorized  by  law,  or  converts  to  his 
own  use  in  any  way  whatever,  or  loans  with  or  with- 

1  Winthrop,  Vol.  1,  p.  1011. 

2  See  Clark,  Cr.  Law,  p.  270. 

3  See  Sec.  3618-b652,  5357,  5488-5497,  Rev.  Stat.  U.  S. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     405 

out  interest,  or  for  any  purpose  not  prescribed  by  law 
withdraws  from  the  Treasurer  or  any  assistant  treasurer, 
or  any  authorized  depository,  or  for  any  purpose  not 
prescribed  by  law  transfers  or  applies  any  portion  of  the 
public  money  intrusted  to  him,  is,  in  every  such  act, 
deemed  guilty  of  an  embezzlement  of  the  money  so  de- 
posited, converted,  loaned,  withdrawn,  transferred,  or 
applied;  and  shall  be  punished  by  imprisonment  with 
hard  labor  for  a  term  not  less  than  one  year  nor  more 
than  ten  years,  or  by  a  fine  of  not  more  than  the  amount 
embezzled  or  less  than  one  thousand  dollars,  or  by  both 
such  fine  and  imprisonment."  1 

Every  officer  or  other  person  charged  by  any  act  of 
Congress  with  the  safe-keeping  of  the  public  moneys,  who 
fails  to  safely  keep  the  same,  without  loaning,  using, 
converting  to  his  own  use,  depositing  in  banks,  or  who 
exchanges  for  other  funds  than  as  specially  allowed  by  law, 
shall  be  guilty  of  embezzlement  of  the  money  so  loaned, 
used,  converted,  deposited,  or  exchanged,2  as  will  also 
every  officer  or  agent  of  the  United  States  who,  having 
received  public  money  which  he  is  not  authorized  to  retain 
as  salary,  pay,  or  emolument,  fails  to  render  his  accounts 
for  the  same  as  provided  by  law.3  And  every  person  who, 
having  moneys  of  the  United  States  in  his  hands  or  pos- 
session, fails  to  make  deposit  of  the  same  with  the  Treas- 
urer, or  assistant  treasurer,  or  some  public  depositary  of 
the  United  States,  when  required  to  do  so  by  the  Secretary 
of  the  Treasury,  or  the  head  of  any  other  proper  Depart- 
ment, or  by  the  accounting  officers  of  the  Treasury  is,  also, 
deemed  guilty  of  embezzlement  thereof,  and  a  penalty 
is  provided  therefor.4 

"Every  officer  charged  with  the  payment  of  any  of  the 
appropriations  made  by  any  act  of  Congress,  who  pays  to 

1  Sec.  5488,  R.  S.  •  Sec.  5491 ,  R.  S. 

2  Sec.  5490,  R.  S.  4  Sec.  5492,  R.  S. 


406  MILITARY  LAW 

any  clerk,  or  other  employee  of  the  United  States,  a  sum 
less  than  that  provided  by  law,  and  requires  such  em- 
ployee to  receipt  or  give  a  voucher  for  an  amount  greater 
than  that  actually  paid  to  and  received  by  him,  is  guilty 
of  embezzlement."  1 

Provision  is  also  made  for  the  punishment  of  those 
persons  who  receive,  conceal,  or  aid  in  concealing,  or 
have,  or  retain  in  their  possession  with  intent  to  convert 
to  their  own  use  or  gain,  any  money,  property,  record, 
voucher,  or  valuable  thing  whatever,  the  property  of  the 
United  States,  which  has  been  embezzled,  stolen,  or 
purloined.2 

"To  establish  embezzlement  in  general  it  is  necessary 
to  show  (1st)  that  the  accused  was  a  servant  or  agent  of 
the  owner  of  the  property,  or  maintained  some  fiduciary 
relation  toward  him,  (2d)  that  he  received  into  his  posses- 
sion the  money  or  other  property  of  such  owner,  (3d)  that 
he  received  it  by  virtue  of  his  employment  or  fiduciary  re- 
lation, and  (4th)  that  he  fraudulently  converted  it  to  his 
own  use."  3 

An  officer  or  soldier  of  the  Army  is  always  an  agent  or 
employee  of  the  United  States,  and  it  will  not  in  general 
be  necessary  to  prove  his  commission  or  enlistment  unless 
it  be  specially  controverted.  The  fact  that  the  accused 
was  acting  as  such  agent,  in  a  fiduciary  capacity,  may  be 
shown  by  general  notoriety,  his  acts,  admissions,  etc.4 

It  is  an  act  of  " conversion  to  his  own  use"  by  any 
officer  charged  with  the  disbursement  of  the  pufrlic  moneys 
if  he  accepts,  receives,  or  transmits  to  the  Treasury  De- 
partment to  be  allowed  in  his  favor,  any  receipt  or  voucher 
from  a  creditor  of  the  United  States,  without  having  paid 
to  such  creditor  in  such  funds  as  the  officer  received  for 
disbursement,  or  in  such  funds  as  he  may  be  authorized 

1  Sec.  5183,  R.  S.  a  Winthrop,  Vol.  1,  p.  1012. 

2  See  Act  March  3,  1875.  4  Id. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     407 

by  law  to  take  in  exchange,  the  full  amount  specified 
in  such  receipt  or  voucher.1 

The  refusal  of  any  person  charged  with  the  safe-keeping, 
transfer,  or  disbursement  of  the  public  money,  to  pay  any 
draft,  order,  or  warrant,  drawn  upon  him  by  the  proper 
accounting  officer  of  the  Treasury,  for  any  public  money 
in  his  hands  belonging  to  the  United  States,  or  to  transfer 
or  disburse  any  such  money  promptly,  upon  the  legal 
requirement  of  any  authorized  officer,  shall  be  deemed, 
upon  the  trial  of  any  indictment  against  said  person  for 
embezzlement,  as  prima  facie  evidence  of  such  embezzle- 
ment;2 and,  by  this  rule,  applied  to  a  military  case, 
where  a  formal  demand  made  upon  an  officer  or  soldier 
in  charge  of  public  funds,  by  an  authorized  superior,  to 
pay  over  or  account  for  the  same,  is  followed  by  his  refusal 
or  neglect  within  reasonable  time  to  do  so,  this  would  be 
evidence  per  se  of  embezzlement.3 

The  misappropriation  named  in  this  section  (9)  of  the 
Article  may  be  either  for  his  own  use  or  for  that  of 
another,  and  includes  the  taking  of  the  ownership,  while 
the  "applying  to  his  own  use  or  benefit"  may  be  sim- 
ply appropriation  of  the  use  of  the  article  for  purpose  of 
himself  or  family. 

In  the  10th  section  of  the  Article  the  essential  element  of 
the  offense  is  the  fact  of  the  party  " knowingly"  purchas- 
ing or  receiving  in  pledge,  for  any  obligation  or  indebted- 
ness, goods  which  are  the  property  of  the  United  States, 
from  any  person  not  having  a  lawful  right  to  sell  or  pledge 
the  same. 

The  penalty  for  every  person  who  receives  stolen  goods 
upon  the  high  seas,  or  in  any  place  under  the  exclusive 
jurisdiction  of  the  United  States,  knowing  the  same  to 

1  Sec.  5496,  R.  S. 

2  See  Sec.  5495,  R.  S. 
»Winthrop,  Vol.  1,  p.  1017. 


408  MILITARY  LAW 

have  been  taken  or  stolen,  is  punishment  by  a  fine  of  not 
more  than  one  thousand  dollars,  and  by  imprisonment 
at  hard  labor  not  more  than  three  years ; l  and  the  penalty 
for  knowingly  purchasing,  or  receiving  in  pledge,  from  any 
soldier  or  sailor,  officer,  or  other  person  employed  in  the 
military  or  naval  service  of  the  United  States,  of  any  arms, 
equipments,  ammunition,  clothes,  military  stores,  or  other 
public  property,  such  person  not  having  the  lawful  right  to 
sell  or  pledge  the  same,  is  even  more  severe.2 

The  penalty  on  conviction  of  offenses  under  any  of  the 
sections  of  this  Article  is  punishment  "by  fine  or  im- 
prisonment, or  by  such  other  punishment  as  a  court- 
martial  may  adjudge,  or  by  any  or  all  of  such  penalties."  3 
Liability  to  prosecution  continues  even  after  dismissal  or 
discharge,  subject,  however,  to  the  statute  of  limitation.4 
It  is  to  be  observed  that  there  are  two  kinds  of  embezzle- 
ment under  the  United  States  statutes,  one  of  which 
involves  an  act  morally  wrong  in  itself  and  done  with  evil 
intent,  as  the  commission  of  fraud,  forgery,  false  oath,  etc.: 
the  other  being  one  which  does  not  necessarily  involve 
such  an  act  or  an  evil  intent,  but  which  simply  comes  under 
the.  prohibition  of  the  statute,  such  as  the  forbidding  of 
the  depositing  of  public  money  by  a  disbursing  officer 
in  any  place  or  manner  except  as  authorized  by  law,  or 
the  withdrawal  by  a  disbursing  officer  of  any  portion  of 
public  money  entrusted  to  him  from  an  authorized  legal 
depository  for  any  purpose  not  prescribed  by  law,  "or  the 
transfer  or  application  of  such  funds  except  as  so  pre- 
scribed.5 

The  provisions  of  law,  in  addition  to  those  of  Article 
60,  regarding  the  care  and  disbursement  of  public  funds 

.    J  Sec.  5357,  R.  S. 

2  See  Sec.  5438,  R.  S.,  and  ante,  Art.  17,  par.  724. 

3  See  Act  March  2,  1901 . 

4  See  Art.  103;  Dig.  Op.  J.  A.  G.  317. 

5  See  Sec.  5488,  R.  S.;  Carter  v.  McClaughry,  183  U.  S.  398. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  409 

should  be  carefully  studied  by  every  officer  responsible 
therefor.1 

768.  Art.  61.  Any  officer  who  is  convicted  of  conduct  unbe= 
coming  an  officer  and  a  gentleman  shall  be  dismissed  from  the 
service. 

The  specific  conduct  which  will  render  an  officer  liable 
to  punishment  under  it  is  not  stated  in  the  Article;  that 
is  determined,  according  to  the  circumstances  of  each 
case,  by  the  court-martial  trying  it,  in  accordance  with 
the  recognized  customs  and  usages  of  the  service  and  the 
general  sentiment  of  the  Army  and  community  at  large 
as  to  what  is  accepted  as  morally  unbefitting  and  un- 
worthy in  a  man  of  honor;  that  is  to  say  a  man  of  a  high 
sense  of  justice,  an  elevated  standard  of  morals  and 
manners,  and  of  corresponding  deportment,  which  con- 
stitute the  "gentleman"  2  which  every  officer  of  the  Army 
is  bound  by  the  law  to  be.3 

Acts  which  are  merely  inappropriate  or  unsuitable,  as 
opposed  to  good  taste  or  propriety  or  not  consonant  with 
usage,  or  the  lack  of  a  high  standard  of  education  or 
refinement  and  good  breeding,  will  not  affect  the  matter, 
which  is  confined  to  "conduct"  alone.4 

To  constitute  the  offense  under  this  Article,  the  con- 
duct need  not  be  "scandalous  and  infamous'7;  nor  is 
it  essential  that  the  act  should  compromise  the  honor  of 
the  officer.  In  making  the  punishment  of  dismissal  manda- 
tory upon  conviction,  the  Article  evidently  contemplates 
that  "the  conduct,  while  unfitting  the  party  for  the  society 
of  men  of  a  scrupulous  sense  of  decency  and  honor,  shall 

1  See  Rev.  Stat.  U.  S.,  Sec.  250,  1788,  1789,  3617-3624,  3639,  3640, 
3643-3648,  3651,  3652,  3678-3679  (amended,  see  G.  O.  69,  War  Depart- 
ment,  1906),   3681-3684,  3690-3692,    5439,   5483,  5488,    5490-5498, 
5501-5503. 

2  Winthrop,  Vol.  1,  p.  1022. 

3  6  Op.  Attorney-General  417. 
*  Winthrop,  Vol.  1,  p.  1021. 


410  MILITARY  LAW 

exhibit  him  as  unworthy  to  hold  a  commission  in  the 
Army."  1 

Knowingly  making  false  official  reports  or  certificates; 
preferring  false  charges  or  accusations  against  another 
officer;  violation  of  pledge  to  abstain  from  intoxicating 
drink;  appearing  in  a  public  place  drunk,  wearing  his 
uniform,  or  visiting  a  disreputable  place  in  uniform; 
gambling  with  enlisted  men;  indifference  to  pecuniary 
obligations  so  as  to  bring  discredit  and  scandal  upon  the 
service;  violently  assaulting  another  without  cause;  giv- 
ing false  testimony  as  a  witness  before  a  court-martial,  or 
attempting  to  suborn  testimony;  breach  of  trust;  acts  of 
fraud,  cheats,  etc.;  abusing,  assaulting,  or  beating  his 
wife;  duplication  of  pay  accounts;  commission  of  felony 
or  crime ;  and  other  acts  of  like  character,  have  been 
held  chargeable  under  this  Article. 

"To  justify  a  charge  under  this  Article  it  is  not  neces- 
sary that  the  act  or  conduct  of  the  officer  should  be  immedi- 
ately connected  with  or  directly  affect  the  military  service. 
It  is  sufficient  that  it  is  morally  wrong  and  of  such  nature 
that,  while  dishonoring  or  disgracing  him  as  a  gentleman, 
it  compromises  his  character  and  position  as  an  officer 
of  the  Army."  2 

An  act  in  violation  of  a  specific  Article  of  War,  which 
also  constitutes  conduct  unbecoming  an  officer  and  a 
gentleman,  may  also  be  charged  under  Article  61. 3 

A  sentence  under  this  Article,  which  adds  to  dismissal 
any  other  penalty  or  penalties,  is  valid  and  operative  only 
as  to  the  dismissal;  the  rest  should  be  disapproved  as 
being  unauthorized  and  of  no  effect.4 

If  evidence  of  the  conduct  charged  under  this  Article 
fails  to  establish  the  specific  offense,  but  is  sufficient  to 

1  Dig.  Op.  J.  A.  G.  123. 

2  Id.  132. 

3  Garter  v.  McClaughry,  183  U.  S.  365,  366. 

4  Dig.  Op.  J.  A.  G.  142. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  411 

warrant  conviction  under  the  62d  Article,  the  finding  may 
be  "not  guilty,"  but  "guilty"  of  conduct  to  the  prejudice 
of  good  order  and  military  discipline  in  violation  of  the 
latter  Article.  But  the  reverse  is  not  true.1 

769.  Art.  62.  All  crimes  not  capital,  and  all  disorders  and 
neglects,  which  officers  and  soldiers  may  be  guilty  of,  to  the 
prejudice  of  good  order  and  military  discipline,  though  not  men- 
tioned in  the  foregoing  Articles  of  War,  are  to  be  taken  cogni= 
zance  of  by  a  general,  or  a  regimental,  garrison,  or  field  officers' 
court=martial,  according  to  the  nature  and  degree  of  the  offense, 
and  punished  at  the  discretion  of  such  court.2 

The  evident  purpose  of  this  Article  was  to  provide  for 
the  trial  and  punishment  of  any  and  all  military  offence  3 
not  expressly  made  cognizable  by  courts-martial  in  the 
other  and  more  specific  Articles,  and  thus  to  prevent  the 
possibility  of  a  failure  of  justice  in  the  Army.3  It  is  clear 
that  a  capital  offense  cannot  be  charged  under  this  Article 
and,  under  its  accepted  construction,  a  crime  specifically 
covered  by  any  other  Article  should  not  be  charged  under 
the  general  Article.  But  if  so  charged  it  is  not  a  question 
of  jurisdiction  but  one  of  practice  and  a  sentence  imposed 
would  not  be  void  if  approved  by  the  proper  reviewing 
officer.4 

The  word  "crimes,"  as  distinguished  from  neglects  and 
disorders,  means  military  offenses  of  a  more  serious  na- 
ture, and  includes  such  as  are  also  civil  crimes, — as  homi- 
cide, arson,  robbery,  larceny,  etc. 

Any  crime  which  is  made  capital  by  statute  of  the 
United  States,  or  of  the  State  or  Territory  in  which  com- 
mitted, cannot  be  brought  within  the  jurisdiction  of  a 
court-martial,  under  this  Article,  by  charging  it  in  a  lesser 
degree, — as  manslaughter,  when  the  proof  shows  it  was 
murder.  In  such  case  the  court  should  refuse  to  take 

1  See  ante,  par.  297. 

2  See  ante,  par.  297,  298. 
•Winthrop,  Vol.  1,  p.  1035. 

4  Carter  v.  McClaughry,  183  U.  S.  397. 


412  MILITARY  LAW 

jurisdiction  or  to  find  or  sentence;  or,  if  it  proceeds,  the 
proceedings  should  be  disapproved  as  unauthorized  and 
void.1 

Acts  violating  a  specific  Article  of  war,  but  which  also 
constitute  conduct  to  the  prejudice  of  good  order  and 
military  discipline,  may  be  charged  under  this  Article 
as  well  as,  at  the  same  time,  under  the  specific  Article, 
inasmuch  as  the  provisions  of  each  Article  have  been 
violated; 2  for  example,  embezzlement  may  be  charged 
in  violation  of  the  60th  Article  of  War  and  the  acts  in 
connection  therewith  be  charged  under  this  Article. 

The  conduct  must  be  directly  prejudicial  to  good  order 
and  military  discipline,  and  not  remotely  affecting  either. 
Mere  breaches  of  the  peace  committed  by  a  soldier  absent 
at  a  distance  of  more  than  ten  miles  from  his  station,  in 
violation  of  a  municipal  ordinance,  would  not  be  cognizable.3 

But  drunkenness  and  disorderly  conduct,  within  this 
limit  of  ten  miles,  causing  the  arrest  of  the  offenders  and 
their  conviction  by  the  civil  authorities,  is  punishable 
under  this  Article.4 

At  a  military  post,  or  within  military  jurisdiction,  or 
where  the  act  or  neglect  in  any  way  affects  the  good 
order  and  discipline  of  the  Army,  any  and  all  kinds  of 
such  acts  or  neglects  constitute  offenses  under  this  Article.5 

A  "neglect"  is  the  failure  to  perform  some  obligation 
required  in  connection  with  military  duty,  and  is  charge- 
able when  it  prejudices  good  order  or  military  discipline. 

The  term  " disorder"  as  used  in  this  connection  is 
more  comprehensive  than  when  used  in  reference  to  civil 
affairs,  and  includes  not  only  frays,  quarrels,  and  the 
like,  but  all  interruptions  of  the  good  order  which  should 

1  Dig.  Op.  J.  A.  G.  148. 

2  See  Carter  v.  McClaughry,  183  U.  S.  395,  3J6. 

3  Dig.  Op.  J.  A.  G.  160. 

4  See  Executive  Order  establishing  maximum  limits  of  punishment, 
published  June  12,  1905,  Appendix  D. 

••  See  Dig.  Op.  J.  A.  G.  159. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  413 

prevail  in  camp  or  garrison  and  wilful  departures  from 
that  orderly  recurrence  of  events  which  constitutes  mili- 
tary discipline,  and  which  are,  as  such,  harmful  or  preju- 
dicial to  good  order  and  military  discipline.1 

770.  Art.  63.  All  retainers  to  the  camp,  and  all  persons  serv- 
ing with  the  armies  of  the  United  States  in  the  field,  though  not 
enlisted  soldiers,  are  to  be  subject  to  orders,  according  to  the  rules 
and  discipline  of  war. 

" Retainers  to  the  camp"  include  all  who  are  attached 
to  the  camp  in  any  capacity,  either  temporarily  or  per- 
manently, through  which  they  receive  fee,  stipend,  or  pay, 
such  as  clerks,  drivers,  guides,  and  others  maintained  at 
public  expense  and  employed  on  the  public  service.2 

The  term  " camp-followers "  includes  all  persons  "who, 
though  neither  enlisted  men  nor  in  pay,  have  at  all  times 
been  subject  to  orders  according  to  the  rules  and  discipline 
of  war,  whether  temporarily  or  permanently  attached  to, 
or  momentarily  and  accidentally  connected  with,  the  army 
in  the  field,  or  on  the  line  of  march."  3 

The  words  "persons  serving  with  the  armies  ...  in  the 
field"  include  both  those  who  are  attached  to  the  camp, 
receiving  pay  or  maintained  at  public  expense,  and  those 
who  are  serving  in  any  private  capacity,  as  officers'  ser- 
vants, and  the  like. 

This  latter  class,  though  subject  to  trial  by  court-martial 
for  breaches  of  discipline  committed  by  them,  have  sel- 
dom been  tried,  but  have  usually  been  punished  by  dis- 
missal from  employment  and  expulsion  from  the  limits  of 
the  camp.4  But  those  employed  and  receiving  pay,  or 
maintained  at  public  expense,  have  repeatedly  been  tried 
and  punished  by  court-martial,  in  time  of  war,  when  with 
the  armies  in  the  field.5  Such  trial  has  been  held  justi- 
fiable when  the  person  was  serving  with  the  troops  in  the 

1  Davis'  Mil.  Law,  p.  474.     2  Samuel,  p.  694.     3  Simmons,  Sec.  71. 
*  Dig.  Op.  J.  A.  G.  161.  5  Id.  162. 


414  MILITARY  LAW 

field  in  active  warfare  with  hostile  Indian  tribes.1  But 
the  jurisdiction  authorized  does  not  extend  to  "time  of 
peace";  civilians  cannot  legally  be  subjected  to  mili- 
tary jurisdiction  by  the  authority  of  this  Article  after  the 
war  has  terminated.  The  jurisdiction,  to  be  lawfully  ex- 
ercised, must  be  exercised  during  the  status  belli.2 

771.  Art.  64.     The  officers  and  soldiers  of  any  troops,  whether 
militia  or  others,  mustered  and  in  pay  of  the  United  States,  shall, 
at  all  times  and  in  all  places,  be  governed  by  the  Articles  of  War, 
and  shall  be  subject  to  be  tried  by  courts=martial.3 

Military  offenses  are  not  territorial,  and  when  an  officer 
or  soldier  commits  an  offense,  though  in  a  foreign  terri- 
tory, he  is  amenable  to  trial  by,  and  may  be  brought 
before,  a  court-martial  wherever  it  may  be  convened  for 
the  purpose.4 

.    ARRESTS   AND    CONFINEMENT  5 

772.  Art.  65.     Officers  charged  with  crime  shall  be  arrested 
and  confined  in  their  barracks,  quarters,  or  tents,  and  deprived 
of  their  swords   by  the  commanding  officer.     And  any  officer 
who  leaves  his  confinement  before  he  is  set  at  liberty  by  his  com- 
manding officer  shall  be  dismissed  from  the  service.6 

773.  Art.  66.     Soldiers    charged    with    crimes    shall    be    con= 
fined    until    tried    by   court=martial,   or  released    by   proper  au= 
thority.7 

774.  Art.  67.     No  provost=marshal,  or  officer  commanding  a 
guard,  shall  refuse  to  receive  or  keep  any  prisoner  committed  to 
his  charge  by  an  officer  belonging  to  the  forces  of  the  United 
States ;    provided  the  officer  committing  shall,  at  the  same  time, 
deliver  an  account  in  writing,  signed  by  himself,  of  the  crime 
charged  against  the  prisoner.8 

"It  is  the  duty  of  the  receiving  officer  to  satisfy  him- 
self that  the  prisoner  tendered  is  one  subject  to  military 
law.  Beyond  this  he  has  no  responsibility,  the  duty  and 

1  Dig.  Op.  J.  A.  G.  164.  5  See  ante,  Chap.  VIII. 

2  Id.  166.  6  See  ante,  Chap.  VIII,  par.  92. 

3  See  ante,  par.  3,  53.  1  See  ante,  Chap.  VIII,  par.  104-106. 

4  Dig.  Op.  J.  A.  G.  169.  8  See  ante,  Chap.  VIII,  par.  105,  106. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  415 

responsibility  of  receiving  and  keeping  the  prisoner  arising, 
co  instante,  as  soon  as  he  is  presented.  His  obligation  is 
the  same  whether  the  offense  charged  be  civil  or  military."  1 

775.  Art.  68.     Every   officer   to   whose   charge   a   prisoner   is 
committed  shall,  within  twenty=four  hours  after  such  commitment, 
or  as  soon  as  he  is  relieved  from  his  guard,  report  in  writing,  to 
the  commanding  officer,  the  name  of  such  prisoner,  the  crime 
charged  against  him,  and  the  name  of  the  officer  committing 
him ;    and  if  he  fails  to  make  such  report,  he  shall  be  punished 
as  a  court=martial  may  direct.2 

776.  Art.  69.     Any  officer  who  presumes,  without  proper  au- 
thority, to  release  any  prisoner  committed  to  his  charge,  or  suf- 
fers any  prisoner  so  committed  to  escape,  shall  be  punished  as  a 
court=martial  may  direct. 

The  prisoner  having  been  received  in  accordance  with 
the  provisions  of  Article  67,  and  reported  according  to 
Article  68,  whatever  officer  succeeds  to  the  charge  of  such 
prisoner  is  equally  responsible  for  his  safe-keeping,  that 
he  does  not  escape;  and  he  cannot  release  him  without 
proper  authority,  which  he  must  be  able  to  produce  or 
prove  when  called  upon  to  account  for  the  prisoner. 

In  case  of  a  sentinel  allowing  a  prisoner  to  escape  he 
is  chargeable  under  the  62d  Article  of  War  for  "wilfully 
suffering  him  to  escape,"  or  " allowing  him  to  escape 
through  neglect."  3 

777.  Art.  70.     No  officer  or  soldier  put  in  arrest  shall  be  con- 
tinued in  confinement  more  than  eight  days,  or  until  such  time 
as  a  court=martial  can  be  assembled.4 

The  closing  sentence  of  the  Article  permits  of  a  discre- 
tionary power  on  the  part  of  the  authority  whose  duty 
it  is  to  convene  the  court  for  the  trial  of  the  case.  This 
may  leave  it  open  to  injustice  on  his  part  by  unnecessary 
delay.  But  in  case  of  such  arbitrary  or  unjust  action  the 

1  Davis'  Mil.  Law,  p.  486. 

2  See  ante,  Chap.  VIII,  par.  105. 

3  See  Executive  Order  establishing  maximum  punishments,  pub- 
lished June  12,  1905,  Appendix  D. 

4  See  ante,  par.  106. 


416  MILITARY  LAW 

person  suffering  has  a  remedy  in  the  power  to  prefer 
charges  against  him  therefor,  which  will,  upon  conviction, 
subject  the  oppressor  to  severe  punishment  for  his  oppres- 
sion, or  he  may  bring  a  civil  suit  for  the  injury  sustained. 
"  Whether  the  delay  in  any  case  is  to  be  regarded  as  so 
far  unreasonable  as  properly  to  subject  the  commander 
responsible  therefor  to  military  charges  or  a  civil  action, 
must  depend  upon  the  circumstances  of  the  situation 
and  the  exigencies  of  the  service  at  the  time."  l 

When  a  soldier  has  been  in  arrest  for  a  long  period  of 
time  before  trial,  or  while  awaiting  promulgation  of  his 
sentence,  this  fact  is  usually  taken  into  consideration  in 
awarding  sentence,  or  in  mitigation  thereof. 

778.  Art.  71.  When  an  officer  is  put  in  arrest  for  the  pur= 
pose  of  trial,  except  at  remote  military  posts  or  stations,  the  officer 
by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the  charges 
on  which  he  is  to  be  tried  is  served  upon  him  within  eight  days 
after  his  arrest,  and  that  he  is  brought  to  trial  within  ten  days 
thereafter,  unless  the  necessities  of  the  service  prevent  such  trial ; 
and  then  he  shall  be  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  If  a  copy  of  the  charges  be  not  served, 
or  the  arrested  officer  be  not  brought  to  trial,  as  herein  required, 
the  arrest  shall  cease.  But  officers  released  from  arrest,  under 
the  provisions  of  this  article,  may  be  tried,  whenever  the  exigen- 
cies of  the  service  shall  permit,  within  twelve  months  after  sucJl 
release  from  arrest. 

The  term  " within  ten  days  thereafter"  is  held  to  mean 
"after  his  arrest."  2  It  has  been  held  a  sufficient  com- 
pliance with  the  requirement  as  to  the  service  of  charges, 
to  have  served  a  true  copy  of  the  existing  charges  and 
specifications,  though  the  list  of  witnesses  appended  to 
the  original  charges  was  omitted,  and  though  the  charges 
themselves  were  not  in  sufficient  legal  form  and  were  in- 
tended to  be  amended  and  redrawn. ^ 

1  Dig.  Op.  J.  A.  G.  177. 

2  Id.  179. 

3  Id.  180. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     417 

The  fact  that  officers  are  stationed  at  remote  posts  or 
stations  does  not  authorize  an  abuse  of  power  in  these 
cases,  and  where,  in  such  case,  an  arrest  has  been  unreason- 
ably protracted  without  trial,  an  officer  has  been  held  to 
be  entitled  to  be  released  from  arrest  upon  a  proper  appli- 
cation submitted  for  the  purpose.1 

But  an  officer,  though  entitled  to  release  from  arrest 
under  this  Article,  is  not  authorized  to  release  himself 
therefrom.  If  not  released  under  such  circumstances  he 
should  apply  for  his  discharge  from  arrest,  through  the 
proper  channels,  to  the  authority  by  whose  order  the  arrest 
was  imposed  or  other  proper  superior.2 

COURTS-MARTIAL 

779.  Art.  72.  Any  general  officer  commanding  an  army,  a 
Territorial  Division  or  a  Department,  or  colonel  commanding  a 
separate  Department,  may  appoint  general  courts=martial  when- 
ever necessary.  But  when  any  such  commander  is  the  accuser 
or  prosecutor  of  any  officer  under  his  command  the  court  shall 
be  appointed  by  the  President;  and  its  proceedings  and  sentence 
shall  be  sent  directly  to  the  Secretary  of  War,  by  whom  they  shall 
be  laid  before  the  President,  for  his  approval  or  orders  in  the  case.3 

Whether  the  commander  who  convened  the  court  is 
an  "accuser"  or  " prosecutor "  in  the  sense  of  the  Article, 
or  not,  must  be  determined  from  his  animus  in  the  mat- 
ter. If  he  initiates  an  investigation  of  an  officer's  con- 
duct and  formally  prefers,  as  his  individual  act,  charges 
against  him;  or,  by  reason  of  personal  interest  adverse  to 
him,  practically  adopts  as  his  own  charges  initiated  by 
another,  he  is  clearly  the  accuser  or  prosecutor  within  the 
Article.  But,  on  the  other  hand,  it  is  his  duty  to  deter- 
mine, where  the  facts  are  brought  to  his  knowledge,  whether 
an  officer  in  his  command,  charged  with  a  military  offense, 
shall  be  brought  to  trial,  or  not.  To  this  end  he  may 
formally  refer,  or  revise,  or  cause  to  be  revised  and  then 

1  Dig.  Op.  J.  A.  G.  181.  2  Id.  178.          8  See  ante,  par.  34-40. 


418  MILITARY  LAW 

formally  referred,  charges  preferred  against  such  officer 
by  another,  or  he  may  direct  a  suitable  officer  to  in- 
vestigate the  matter,  and  to  formulate  and  prefer  such 
charges  as  the  facts  may  warrant  and,  having  been  sub- 
mitted to  him,  he  may  revise  and  refer  them  for  trial  as 
in  other  cases.  This  he  does  in  the  proper  performance 
of  his  official  duty  without  becoming  the  accuser  or  prose- 
cutor in  the  case..  Nor  is  he  the  accuser  or  prosecutor 
where  he  causes  charges  to  be  preferred  and  proceeds  to 
convene  the  court  by  direction  of  the  Secretary  of  War 
or  a  competent  military  superior.1 

780.  Art.  73.     In  time  of  war  the  commander  of  a  division, 
or  of  a  separate  brigade  of  troops,  shall  be  competent  to  appoint 
a  general  court=martial.     But  when  such  commander  is  the  accu= 
ser  or  prosecutor  of  any  person  under  his  command,  the  court  shall 
be  appointed  by  the  next  higher  commander.2 

781.  Art.  74.     Officers  who  may  appoint  a  court=martial  shall 
be  competent  to  appoint  a  judge=advocate  for  the  same. 

Whenever  a  court-martial  shall  sit  in  closed  session  the 
judge-advocate  shall  withdraw,  and  when  his  legal  advice 
or  his  assistance  in  referring  to  recorded  evidence  is  re- 
quired it  shall  be  obtained  in  open  court.3 

782.  Art.  75.     General  courts=martial  may  consist  of  any  num- 
ber of  officers  from  five  to  thirteen,  inclusive ;   but  they  shall  not 
consist  of  less  than  thirteen,  when  that  number  can  be  convened 
without  manifest  injury  to  the  service.4 

783.  Art.  76.     When  the  requisite  number  of  officers  to  form 
a  general  court=martial  is  not  present  in  any  post  or  detachment, 
the  commanding  officer  shall,  in  cases  which  require  the  cogni- 
zance of  such  a  court,  report  to  the  commanding  officer  of  the 
department,  who  shall,  thereupon,  order  a  court  to  be  assembled 
at  the  nearest  post  or  department  at  which  there  may  be  such  a 
requisite  number  of  officers,  and  shall  order  the  party  accused, 
with  necessary  witnesses,  to  be  transported  to  the  place  where  the 
said  court  shall  be  assembled. 

1  Dig.  Op.  J.  A.  G.  187. 

2  See  ante,  par.  41-43. 

3  A.  R.  955;  Act  July  27,  1892;  ante,  par.  152. 

4  See  ante,  par.  46,  47,  132-145. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     419 

This  provision  is  necessary  when  the  number  of  officers 
eligible  to  sit  upon  a  case  at  a  post  where  trial  is  to  be 
had  is  insufficient  to  constitute  a  court. 

784.  Art.  77.     Officers  of  the  Regular  Army  shall  not  be  com- 
petent to  sit  on  courts=martial  to  try  the  officers  or  soldiers  of 
other  forces,  except  as  provided  in  Article  78. 1 

785.  Art.  78.     Officers  of  the  Marine  Corps,  detached  for  serv- 
ice with  the  Army  by  order  of  the  President,  may  be  associated 
with  officers  of  the  Regular  Army  on  courts=martial  for  the  trial 
of  offenders  belonging  to  the  Regular  Army,  or  to  forces  of  the 
Marine  Corps  so  detached;    and  in  such  cases  the  orders  of  the 
senior  officer  of  either  corps,  who  may  be  present  and  duly  au- 
thorized, shall  be  obeyed.2 

786.  Art.  79.     Officers  shall  be  tried  only  by  general  courts- 
martial;    and  no  officer  shall,  when  it  can  be  avoided,  be  tried 
by  officers  inferior  to  him  in  rank.3 

787.  Art.  80.    Repealed  by  Act  of  June  18,  1898. 

788.  Art.  81.     Every  officer  commanding  a  regiment  or  corps 
shall,  subject  to  the  provisions  of  Article  80,   be  competent  to 
appoint,  for  his  own  regiment  or  corps,  courts=martial,  consisting 
of  three  officers,  to  try  offenses  not  capital.4 

Article  80  having  been  repealed  by  the  act  establish- 
ing the  summary  court  (Act  June  18,  1898),  and  the  field 
officer's  court  having  been  abolished,  the  commanding 
officer  of  a  regiment  or  corps  is  no  longer  restricted,  by 
the  provisions  of  that  Article,  from  appointing  regimental 
courts,  in  time  of  war,  even  when  a  field  officer  is  present. 

789.  Art.  82.     Every  officer  commanding  a  garrison,  fort,  or 
other  place,  where  the  troops  consist  of  different  corps,  shall, 
subject  to  the  provisions  of  Article  80,  be  competent  to  appoint, 
for  such  garrison  or  other  place,  courts=martial,   consisting  of 
three  officers,  to  try  offenses  not  capital.5 

The  clause  " subject  to  the  provisions  of  Article  80  " 

1  See  ante,  par.  50,  51. 

2  See  ante,  par.  50. 

3  See  ante,  par.  49,  140. 

4  See  ante,  par.  77,  78,  and  post,  Art.  83,  par.  790. 
6  See  ante,  par.  74-78:  post,  Art.  83,  par.  790. 


4  See  ante,  par.  77,  78,  and  post,  Art.  83, 
6  See  ante,  par.  74-78;  post,  Art.  83,  par. 


420  MILITARY  LAW 

has  been   superseded  by  the  new  law  establishing  the 
summary  court.1 

790.  Art.  83.  Regimental  and  garrison  courts=martial  and 
summary  courts  detailed  under  existing  laws  to  try  enlisted  men 
shall  not  have  power  to  try  capital  cases  or  commissioned  of= 
ficers,  but  shall  have  power  to  award  punishment  not  to  exceed 
confinement  at  hard  labor  for  three  months  or  forfeiture  of  three 
months'  pay,  or  both,  and  in  addition  thereto,  in  the  case  of  non= 
commissioned  officers,  reduction  to  the  ranks,  and  in  the  case  of 
first=class  privates  reduction  to  second=class  privates:  Pro= 
vided,  That  a  summary  court  shall  not  adjudge  confinement  and 
forfeiture  in  excess  of  a  period  of  one  month,  unless  the  accused 
shall  before  trial  consent  in  writing  to  trial  by  said  court,  but  in 
any  case  of  refusal  to  so  consent,  the  trial  may  be  had  either  by 
general,  regimental,  or  garrison  court=martial,  or  by  said  sum= 
mary  court,  but  in  case  of  trial  by  said  summary  court  without 
consent  as  aforesaid,  the  court  shall  not  adjudge  confinement  or 
forfeiture  of  pay  for  more  than  one  month.2 

Capital  offenses  not  being  within  the  jurisdiction  of  in- 
ferior courts,  such  courts  cannot  take  cognizance  of  acts 
made  specifically  punishable  by  Article  21,  however  slight 
may  be  the  offenses  actually  committed.3 

This  Article  fixes  the  limit  of  the  punishing  power  of 
inferior  courts;  and  for  those  offenses  for  which  a  limit 
of  punishment  has  been  prescribed,  a  summary  court  is 
restricted  to  the  kinds  of  punishment  named,  except  as 
to  the  substitutions,  as  authorized  in  the  Executive  Order, 
establishing  those  limits.4 

While  inferior  courts  have,  equally  with  general  courts, 
jurisdiction  of  all  military  offenses  not  capital  committed 
by  enlisted  men,  the  more  serious  offenses  should,  where 
practicable,  be  referred  for  trial  to  general  courts-martial, 
which  are  alone  vested  with  a  full  discretion  to  impose 
punishment  in  proportion  to  the  gravity  of  the  offense. 

1  Act  June  18,  1898. 

2  As  amended  by  Act  of  March  2,  1901;  see  ante,  par.  81. 
8  Dig.  Op.  J.  A.  G.  219. 

4  See  Executive  Order  published  June  12,  1905,  Appendix  D. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  421 

"An  inferior  court  cannot,  however,  legally  decline  to 
try  or  sentence  an  offender  on  the  ground  that  it  is  not 
empowered  by  this  Article  to  impose  a  punishment  ade- 
quate to  his  actual  offense.7'  1 

The  summary  court  is  a  court-martial  within  the  mean- 
ing of  the  acts  making  appropriations  for  "expenses  of 
courts-martial  .  .  .  and  compensation  of  witnesses  attend- 
ing the  same."  The  summary  court  officer  will  make  the 
necessary  certificate  as  to  the  fact  of  attendance  in  the 
case  of  a  civilian  witness  and  administer  the  oath  respect- 
ing his  account.2 

791.  Art.  84.  The  judge-advocate  shall  administer  to  each 
member  of  the  court,  before  they  proceed  upon  any  trial,  the 
following  oath,  which  shall  also  be  taken  by  all  members  of  regi- 
mental and  garrison  courts=martial :  "  You,  A.  B.,  do  swear  that 
you  will  well  and  truly  try  and  determine,  according  to  evidence* 
the  matter  now  before  you,  between  the  United  States  of  America 
and  the  prisoner  to  be  tried,  and  that  you  wili  duly  administer 
justice,  without  partiality,  favor,  or  affection,  according  to  the 
provisions  of  the  rules  and  articles  for  the  government  of  the 
armies  of  the  United  States,  and  if  any  doubt  should  arise,  not 
explained  by  said  articles,  then  according  to  your  conscience, 
the  best  of  your  understanding,  and  the  custom  of  war  in  like 
cases;  and  you  do  further  swear  that  you  will  not  divulge  the 
sentence  of  the  court  until  it  shall  be  published  by  the  proper 
authority,  except  to  the  judge=advocate ;  neither  will  you  dis- 
close or  discover  the  vote  or  opinion  of  any  particular  member 
of  the  court-martial,  unless  required  to  give  evidence  thereof, 
as  a  witness,  by  a  court  of  justice,  in  due  course  of  law.  So  help 
you  God."  3 

The  administration  of  this  oath  to  every  member  is 
essential  to  the  validity  of  the  proceedings,  and  the  fact 
that  it  has  been  so  administered  must  appear  upon  the 
record.4  In  swearing  the  members  the  judge-advocate 
addresses  each  member  by  name,  beginning  with  the 

1  Dig.  Op.  J  A.  G.  224. 

2  Id.  2406. 

8  See  ante,  par.  174,  390;  Act  July  27,  1892. 
4  See  ante,  par.  174,  390. 


422  MILITARY  LAW 

senior  in  rank,  saying:  "You,  A.  B.,  C.  D.,  etc.,  do  swear," 
etc.1 

While  the  oath  specifically  requires  that  they  will  not 
divulge  the  sentence  of  the  court,  and  is  silent  as  to  its 
finding,  it  is  accepted  as  a  custom  of  the  service  that  the 
finding  also  is  not  to  be  divulged.  Disclosures  made 
before  the  final  action  of  the  reviewing  officer  would  not 
be  conducive  to  the  best  interests  of  the  service,  and 
might  even  be  erroneous  at  the  conclusion  of  the  case, 
because  of  a  reconsideration  required  by  that  officer. 
But  disclosures  made  would  not  affect  the  validity  of  the 
proceedings  or  sentence;  they  would,  however,  lay  the 
person  open  to  charge  of  violation  of  the  oath  of  secrecy 
taken. 

A  member  added  to  the  court,  after  the  other  members 
have  been  sworn,  should  be  separately  sworn  in  the  full 
form  prescribed  by  the  Article.  A  member  who  prefers 
it  may  be  affirmed  instead  of  sworn.2 

As  the  court  must  be  sworn  in  each  particular  case  it 
tries,  the  introduction  of  additional  charges,  after  the 
court  has  been  sworn  on  those  already  before  it,  would 
be  improper  and  illegal,  and  the  proceedings  fatally 
defective,  the  court  not  having  been  sworn  for  their  trial.3 

The  words  "a  court  of  justice"  "are  deemed  to  mean 
a  civil  or  criminal  court  of  the  United  States,  or  of  a 
State,  and  not  to  include  a  court-martial."  4 

792.  Art.  85.  When  the  oath  has  been  administered  to  the 
members  of  a  court=martial,  the  president  of  the  court  shall  ad= 
minister  to  the  judge=advocate,  or  person  officiating  as  such,  an 
oath  in  the  following  form:  "  You,  A,  B.,  do  swear  that  you  will 
not  disclose  or  discover  the  vote  or  opinion  of  any  particular  mem- 
ber of  the  court=martial,  unless  required  to  give  evidence  thereof, 
as  a  witness,  by  a  court  of  justice,  in  due  course  of  law;  nor 

1  See  ante,  par.  174. 

2  Dig.  Op.  J.  A.  G.  225. 

3  Id.  226. 

4  Davis'  Mil.  Law,  p.  506. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  423 

divulge  the  sentence  of  the  court  to  any  but  the  proper  authority, 
until  it  shall  be  duly  disclosed  by  the  same.     So  help  you  God."  1 

The  purpose  of  the  oath  is  similar  to  that  prescribed 
for  the  members,  but  permits  the  judge-advocate  to  di- 
vulge the  sentence  to  the  proper  authority,  who  is,  of 
course,  the  officer  who,  by  law,  is  the  proper  reviewing 
authority 

793.  Art.  86.     A  court=martial  may  punish,  at  discretion,  any 
person  who  uses  any  menacing  words,  signs,  or  gestures,  in  its 
presence,  or  who  disturbs  its  proceedings  by  any  riot  or  disorder.2 

794.  Art.  87.     All  members  of  a  court=martial  are  to  behave 
with  decency  and  calmness.3 

While  the  members  of  the  court-martial  are  not  punish- 
able for  contempt,  they  are  subject  to  charges,  and  trial 
by  court-martial,  for  any  violation  of  this  Article;  and  if 
the  misbehavior  justifies  it,  the  charge  may  also  be  laid 
under  the  61st  Article  of  War. 

795.  Art.  88.     Members  of  a  court=martial  may  be  challenged 
by  a  prisoner,  but  only  for  cause  stated  to  the  court.     The  court 
shall  determine  the  relevancy  and  validity  thereof,  and  shall  not 
receive  a  challenge  to  more  than  one  member  at  a  time.4 

The  right  of  challenge  being  statutory,  it  is  essential 
to  the  validity  of  the  proceedings  that  opportunity  be 
offered  the  accused  to  challenge  each  member,  and  this 
must  appear  from  the  record. 

796.  Art.  89.     When   a  prisoner,   arraigned   before  a  general 
court=martial,  from  obstinacy  and  deliberate  design,  stands  mute, 
or  answers  foreign  to  the  purpose,  the  court  may  proceed  to  trial 
and  judgment,  as  if  the  prisoner  had  pleaded  not  guilty.5 

797.  Art.  90.     The   judge=advocate,    or   some   person   deputed 
by  him,  or  by  the  general  or  officer  commanding  the  Army,  de- 
tachment, or  garrison,  shall  prosecute  in  the  name  of  the  United 
States,  but  when  the  prisoner  has  made  his  plea,  he  shall  so  far 

1  See  ante,  par.  174. 

2  See  ante,  par.  68-73. 

3  See  ante,  par.  69,  143,  144. 

4  See  ante,  par.  166-173. 
6  See  ante,  par.  209. 


424  MILITARY  LAW 

consider  himself  counsel  for  the  prisoner  as  to  object  to  any 
leading  question  to  any  of  the  witnesses,  and  to  any  question  to 
the  prisoner,  the  answer  to  which  might  tend  to  criminate  himsejf.1 

The  provision  of  this  Article,  "or  some  person  deputed 
by  him "  (the  judge-advocate),  was  adopted  from  the 
similar  provision  in  the  early  British  articles;  but,  though 
retained  here,  is  now  obsolete,  being  superseded,  in  modern 
practice,  by  the  provision  of  Article  74.  A  judge-advocate 
cannot  now  depute  any  person  to  prosecute  an  accused 
before  a  court-martial. 

798.  Art.  91.  The  depositions  of  witnesses  residing  beyond 
the  limits  of  the  State,  Territory,  or  District  in  which  any  mili= 
tary  court  may  be  ordered  to  sit,  if  taken  on  reasonable  notice 
to  the  opposite  party  and  duly  authenticated,  may  be  read  in 
evidence  before  such  court  in  cases  not  capital.2 

"  A  deposition  cannot  be  read  in  evidence  in  a  capital  case 
(that  is,  in  a  case  where  the  offense  charged  is  punishable 
capitally),  as  in  a  case  of  violation  of  Article  21,  or  in  case 
of  a  spy,  or  one  of  desertion  in  time  of  war,"  or  a  sentinel 
sleeping  on  post,  etc.,  in  violation  of  Article  39.  But  it  may 
be  read  in  case  of  a  trial  for  desertion  in  time  of  peace.3 

The  party  at  whose  instance  a  deposition  has  been 
taken  must  offer  the  deposition  in  evidence  as  a  whole  or 
not  offer  it  at  all;  he  cannot  select  such  parts  only  as  are 
favorable  to  him.  If  he  decides  not  to  put  it  in  at  all, 
it  may  be  read  in  evidence  by  the  other  party.  One 
party,  where  the  deposition  has  been  duly  taken,  and  is 
admissible  under  this  Article,  cannot  withhold  it  without 
the  consent  of  the  other  party.4 

The  provisions  of  Sections  866-870,  Revised  Statutes, 
relate  to  depositions  in  the  United  States  courts  and 
have  no  application  to  courts-martial.5 

1  See  ante,  par.  148-157. 


5  Id.  273. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED 

"  Questions  as  to  the  competency  or  credibility  of  the 
deponent  are  determined  by  the  court,  and  the  deposition 
of  an  incompetent  deponent,  though  formal  and  properly 
obtained  and  not  subject  to  exception  in  respect  to  validity 
of  execution,  is  not  admissible  in  evidence  at  a  trial  by 
court-martial."  l 

799.  Art.  92.     All  persons  who  give  evidence  before  a  court- 
martial  shall  be  examined  on  oath,  or  affirmation,  in  the  follow- 
ing  form:    "You  swear  (or  affirm)  that  the  evidence  you  shall 
give,  in  the  case  now  in  hearing,  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.     So  help  you  God."  2 

The  Article  does  not  prescribe  by  whom  the  oath  shall 
be  administered.  By  the  custom  of  the  service  it  is  ad- 
ministered by  the  judge-advocate.  When  the  judge- 
advocate  himself  takes  the  witness-stand,  he  is  properly 
sworn  by  the  president  of  the  court.3  Judge-advocates 
of  courts-martial  are  now  authorized  by  law  to  administer 
oaths  for  all  purposes  of  administration  of  military 
justice.4 

A  witness  who  has  once  been  sworn  in  a  case  is  not 
required  to  be  again  sworn  when  recalled  to  testify  in  the 
same  case.  He  should,  however,  be  cautioned  that  he 
has  already  been  duly  sworn  in  the  case,  and  that  he  is 
still  under  oath.  If  re-sworn,  however,  it  will  not  affect 
the  validity  of  the  proceedings  or  sentence.5 

800.  Art.  93.     A    court=martial    shall,    for    reasonable    cause, 
grant  a  continuance  to  either  party,  for  such  time,  and  as  often, 
as  may  appear  to  be  just:    Provided,    That  if  the  prisoner  be  in 
close  confinement,  the  trial  shall  not  be  delayed  for  a  period 
longer  than  sixty  days.8 

The  court  decides  what  is  a  "  reasonable  cause  "  within 
the  meaning  of  the  Article,  and  having  found  that  it  exists, 

1  Davis'  Mil.  Law,  p.  515. 

2  See  ante,  par.  238-240,  and  615. 

3  Dig.  Op.  J.  A.  G.  274. 

4  Act  July  27,  1892. 

6  Dig.  Op.  J.  A.  G.  274,  note;  Davis'  Mil.  Law,  p.  517. 
8  See  ante,  par.  176. 


426  MILITARY  LAW 

is  then  bound  to  grant  a  continuance.  A  refusal  to  do 
so,  however,  will  not  invalidate  the  proceedings;  but  if 
the  accused  has  been  prejudiced  in  his  defense  it  may 
constitute  a  ground  for  disapproval  of  the  proceedings, 
or  mitigation  of  any  sentence  awarded.1 

Good  grounds  for  continuance  have  been  held  to  be 
(1st)  absence  of  a  material  witness,  (2d)  time  to  procure 
the  deposition  of  a  distant  witness,  (3d)  absence  of  written 
or  documentary  evidence,  (4th)  sickness  of  the  accused, 
the  judge-advocate,  or  a  material  witness,  (5th)  time 
to  procure  the  assistance  of  counsel,  (6th)  time  to  pre- 
pare the  defense,  and  the  like.2 

801.  Art.  94.     This  Article,  which  fixed  the  hours  when 
the  court  might  sit,  has  been  repealed.3 

802.  Art.  95.     Members   of   a   court=martial,    in    giving   their 
votes,  shall  begin  with  the  youngest  in  commission.4 

803.  Art.  96.     No  person  shall  be  sentenced  to  suffer  death, 
except  by  the  concurrence  of  two=thirds  of  the  members  of  a 
general  court=martial,  and  in  the  cases  herein  expressly  mentioned.5 

804.  Art.  97.     No  person  in  the  military  service  shall,  under 
the  sentence  of  a  court=martial,  be  punished  by  confinement  in 
a  penitentiary,  unless  the  offense  of  which  he  may  be  convicted 
would,  by  some  statute  of  the  United  States,  or  by  some  statute 
of  the  State,  Territory,  or  District  in  which  such  offense  may 
be  committed,  or  by  the  common  law,  as  the  same  exists  in  such 
State,  Territory,  or  District,  subject  such  convict  to  such  punish- 
ment.6 

This  provision  for  punishment  by  imprisonment  in  a 
penitentiary  for  offenses  which  are  so  punishable  under 
the  laws  of  the  United  States,  or  the  laws  of  the  State, 
Territory,  or  District  where  the  offense  is  committed, 
excepts,  by  its  limitation,  other  cases  arising  in  the  mili- 

1  Dig.  Op.  J.  A.  G.  276. 

2  See  Winthrop,  Vol.  1,  p.  333  et  seq.;   Dig.  Op.  J.  A.  G.  277-280; 
see  ante,  par.  176. 

3  Act  March  2,  1901;  see  Appendix  C. 

4  See  ante,  Chap.  XXII,  par.  370-377. 

5  See  ante,  par.  312,  328-331,  370-377. 
8  See  ante,  par.  313-316,  344,  345. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    427 

tary  service,  so  that  offenses  purely  military  in  character, 
sueh  as  desertion,  disobedience  of  orders,  neglect  of  duty, 
and  the  like,  not  being  felonies  under  the  laws  of  the 
United  States,  or  the  State,  etc.,  cannot  be  punished  by 
imprisonment  in  a  penitentiary;  but  they  may  be  pun- 
ished by  confinement  in  a  military  prison,  or  at  a  post. 
And  in  such  cases  a  sentence  to  be  confined  in  a  peni- 
tentiary is  wholly  unauthorized  and  illegal  and  should  be 
disapproved.  "  Effect  cannot  be  given  to  such  a  sentence 
by  commuting  it  to  confinement  in  a  military  prison,  or 
to  some  other  punishment  that  would  be  legal  for  such 
offense.  Nor,  in  case  of  such  an  offense,  can  a  severe 
penalty,  as  death,  be  commuted  to  confinement  in  a 
penitentiary."  1  But  where  a  sentence  to  a  penitentiary 
is  legal  it  may  be  mitigated  to  confinement  in  a  military 
prison,  or  at  a  military  post.2 

805.  Art.  98.     No  person  in  the  military  service  shall  be  pun- 
ished by  flogging,  or  by  branding,  marking,  or  tattooing  on  the 
body.3 

Punishments  such  as  branding  convicted  deserters  with 
the  letter  D,  etc.,  were  formerly  awarded,  but  are  now 
prohibited  as  contrary  to  public  policy  and  to  the  best 
interests  of  the  service. 

806.  Art.  99.     No    officer    shall    be    discharged    or    dismissed 
from  the  service,  except  by  order  of  the  President,  or  by  sentence 
of  a  general  court=martial ;  and  in  time  of  peace  no  officer  shall  be 
dismissed,  except  in  pursuance  of  the  sentence  of  a  court=martial, 
or  in  mitigation  thereof.4 

The  dismissal  of  an  officer  from  the  service,  in  time  of 
peace,  is  limited  by  this  Article  to  dismissal  "in  pur- 
suance of  the  sentence  of  a  court-martial,  or  in  mitigation 
thereof."  In  time  of  war  an  officer  may  be  discharged 

1  Davis'  Mil.  Law,  p.  522. 

2  Dig.  Op.  J.  A.  G.  299. 

3  See  ante,  par.  368,  369. 

4  See  ante,  par.  66,  332-335. 


428  MILITARY  LAW 

or  dismissed  from  the  service  by  sentence  of  a  general 
court-martial  or,  summarily,  by  order  of  the  President. 

A  summary  dismissal  of  an  officer  by  the  Executive 
does  not  take  effect  until  the  order  oi  dismissal,  or  an 
official  copy  of  the  same,  is  delivered  to  him,  or  he  is  other- 
wise officially  notified  of  the  fact  of  his  dismissal.  Such 
order  does  not  deprive  the  officer  of  his  right  to  any  pay 
due  him  at  the  time. 

807.  Art.   100.     When   an  officer  is  dismissed   from   the  ser- 
vice for  cowardice  or  fraud,  the  sentence  shall   further  direct 
that  the  crime,  punishment,  name,  and  place  of  abode  of  the  de- 
linquent shall  be  published  in  the  newspapers  in  and  about  the 
camp,  and  in  the  State  from  which  the  offender  came,  or  where 
he  usually  resides ;   and  after  such  publication  it  shall  be  scanda- 
lous for  an  officer  to  associate  with  him. 

"The  terms  'cowardice'  and  ' fraud'  employed  in  this 
Article  may  be  considered  as  referring  mainly  to  offenses 
made  punishable  by  Articles  42  and  60.  With  these, 
however,  may  be  regarded  as  included  all  offenses  in 
which  fraud  or  cowardice  is  necessarily  involved,  though 
the  same  be  not  expressed  in  terms  in  the  charge  or  specifi- 
cation." 1 

"  Though  the  injunction  of  the  Article  as  to  the  direc- 
tion to  be  added  in  the  sentence  should,  of  course,  be 
regularly  complied  with,  a  failure  to  so  comply  will  not 
affect  the  validity  of  the  punishment  of  dismissal  ad- 
judged by  the  sentence."2 

The  declaration  that  "it  shall  be  scandalous,"  etc.,  is 
not  intended  to  be,  and  should  not  be,  incorporated  in 
the  sentence.  3 

808.  Art.   101.     When    a    court=martial    suspends    an    officer 
from  command,  it  may  also  suspend  his  pay  and  emoluments  for 
the  same  time,  according  to  the  nature  of  his  offense.4 

1  Dig.  Op.  J.  A.  G.  301. 

2  Id.  302. 

3  Id.,  note. 

4  See  ante,  par.  337-340. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     429 

Notwithstanding  the  suspension  of  an  officer  from 
rank  and  command,  he  is  entitled  to  quarters  according 
to  rank  if  present  at  the  post.1 

809.  Art.   102.     No  person  shall  be  tried  a  second  time  for  the 
same  offense.2 

In  order  to  avail  himself  of  the  plea  under  this  Article 
it  must  be  shown  that  the  proceedings  in  the  former  trial 
were  before  a  legally  organized  court-martial  having  juris- 
diction of  the  case;  the  proceedings  must  have  been  with- 
out fatal  defect,  and  the  finding  valid.3  The  offense 
charged  must  be  the  same  as  in  the  former  trial,  that  is, 
the  two  offenses  must  be  identical  or  be  so  related,  from 
the  fact  that  one  is  included  in  the  other,  that  the  trial 
and  an  acquittal  or  conviction  of%  the  one  necessarily  puts 
the  accused  in  jeopardy  of  the  other.4 

The  provisions  of  the  Article  apply  to  inferior  courts  as 
well  as  to  general  courts-martial.5 

The  reconsideration  by  a  court-martial  of  a  finding, 
whether  of  guilty  or  not  guilty,  when  duly  reconvened 
for  that  purpose,  is  not  a  second  trial  within  the  meaning 
of  this  Article.  The  original  and  revised  proceedings  are 
merely  parts  of  one  and  the  same  trial.6 

810.  Art.   103.     No  person  shall  be  liable  to  be  tried  and  pun- 
ished by  a  general  court=martial  for  any  offense  which  appears 
to  have  been  committed  more  than  two  years  before  the  issuing 
of  the  order  for  such  trial,  unless,  by  reason  of  having  absented 
himself,  or  of  some  other  manifest  impediment,  he  shall  not  have 
been  amenable  to  justice  within  that  period. 

No  person  shall  be  tried  or  punished  by  a  court=martial  for 
desertion  in  time  of  peace  and  not  in  the  face  of  an  enemy,  com= 
mitted  more  than  two  years  before  the  arraignment  of  such  per- 
son for  such  offense,  unless  he  shall  meanwhile  have  absented  him- 
self from  the  United  States,  in  which  case  the  time  of  his  absence 

1  Cir.  1,  H.  Q.  A.,  A.  G.  O.,  1892;  A.  R.  1040. 

2  See  ante,  par.  194-200. 

3  Winthrop,  Vol.  1,  pp.  364-367. 

4  Id.,  p.  368. 
6  Id.,  p.  691. 

6  Dig.  Op.  J.  A.  G.  313. 


430  MILITARY  LAW 

shall  be  excluded  in  computing  the  period  of  the  limitation :  Pro- 
vided, That  said  limitation  shall  not  begin  until  the  end  of  the 
term  for  which  said  person  was  mustered  into  the  service.1 

"In  view  of  this  Article  it  is  the  duty  of  the  govern- 
ment to  prosecute  an  offender  within  a  reasonable  time 
after  the  commission  of  the  offense."  2 

The  fact  that  the  offense  was  concealed  by  the  accused 
and  remained  unknown  to  the  military  authorities  for 
more  than  two  years,  constitutes  no  " impediment"  in 
the  sense  of  this  Article.3 

The  liability  to  trial  after  discharge,  imposed  by  the 
last  clause  of  Article  60,  is  subject  to  the  statute  of  limi- 
tation,4 and  so  also  is  the  liability  to  trial  after  expiration 
of  the  term  of  enlistment  under  Article  48,5  and  so  as  to 
Article  71 .6 

811.  Art.   104.     No  sentence  of  a  court=martial  shall  be  car- 
ried into  execution  until  the  same  shall  have  been  approved  by 
the  officer  ordering  the  court,  or  by  the  officer  commanding  for 
the  time  being.7 

This  Article  is  properly  to  be  complied  with  by  an 
approval  of  the  sentence  (where  the  same  is  approved  in 
fact)  by  the  " officer  ordering  the  court,"  etc.,  although 
— as  in  case  of  sentence  of  dismissal  of  an  officer  in  time 
of  peace — he  may  not  be  empowered  finally  to  confirm 
and  give  effect  to  the  sentence.  His  approval  is  required 
as  showing  that  he  does  not,  as  he  is  authorized  to  do, 
disapprove.8 

812.  Art.   105.     No  sentence  of  a  court=martial,  inflicting  the 
punishment  of  death,  shall  be  carried  into  execution  until  it  shall 
have  been  confirmed  by  the  President;    except  in  the  cases  of 
persons  convicted  in  time  of  war,  as  spies,  mutineers,  deserters, 

1  As  amended  by  Act  of  April  11,  1890;  see  ante,  par.  186-193. 

2  Dig.  Op.  J.  A.  G.  319. 

3  Id.  315. 

4  Art.  103. 

5  Dig.  Op.  J.  A.  G.  317. 
"Winthrop,  Vol.  1,  p.  361. 

7  See  ante,  par.  428-434. 

8  Dig.  Op.  J.  A.  G.  323. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED     431 

or  murderers,  and  in  the  cases  of  guerrilla  marauders,  convicted, 
in  time  of  war,  of  robbery,  burglary,  arson,  rape,  assault  with 
intent  to  commit  rape,  or  of  violation  of  the  laws  and  customs 
of  war;  and  in  such  excepted  cases  the  sentence  of  death  may 
be  carried  into  execution  upon  confirmation  by  the  command- 
ing general  in  the  field,  or  the  commander  of  the  department,  as 
the  case  may  be.1 

This  Article  confers  upon  the  commanding  general  in 
the  field,  or  the  commander  of  the  department,  as  the 
case  may  be,  power  to  carry  into  execution,  in  time  of- 
war,  sentences  of  courts-martial  inflicting  the  punish- 
ment of  death  for  offenses  mentioned  therein,  instead  of 
awaiting  the  action  of  the  President,  which  is  required 
"in  time  of  peace."  But  the  corresponding  power  to 
remit  or  mitigate  the  sentence  is  not  expressly  given  in 
the  Article. 

The  power  here  given,  in  the  cases  mentioned,  is  essen- 
tial to  the  maintenance  of  good  order  and  discipline  within 
the  theater  of  active  military  operations.  If  occasion 
for  clemency  arises,  or  for  pardon,  the  matter  is  left,  as 
vested  by  the  Constitution,  in  the  hands  of  the  Executive.2 

813.  Art.  106.  In  time  of  peace  no  sentence  of  a  court-martial, 
directing  the  dismissal  of  an  officer,  shall  be  carried  into  execu- 
tion, until  it  shall  have  been  confirmed  by  the  President.3 

Under  this  Article  the  sentence  of  dismissal  of  an  officer 
must,  in  time  of  peace^  be  confirmed  by  the  President  be- 
fore it  can  be  carried  into  execution. 

The  legal  sentence  of  dismissal  of  an  officer  takes  ef- 
fect on  the  date  of  personal  official  notice  of  the  order 
separating  Mm  from  the  military  service;  and  he  is  en- 
titled to  pay  and  allowances  up  to  that  date.  The  date 
which  the  order  bears  is  immaterial  if  notice  of  the  same 
is  not  duly  brought  home  to  the  officer  till  a  subsequent 
day.4 

1  See  ante,  par.  437-440.  3  See  ante,  par.  438. 

2  Davis'  Mil.  Law,  p.  544.  4  Dig.  Op.  J.  A.  G.  1849. 


432  MILITARY  LAW 

But  where  an  officer  fails  to  receive  personal  official 
notice  by  reason  of  some  fault  or  neglect  of  his  own  he 
will  not  be  permitted  to  take  advantage  of  his  own  wrong, 
and  the  receipt  of  the  order  at  his  proper  station,  or  last 
reported  station,  will  be  held  to  operate  as  due  and  effect- 
ual, or  constructive,  notice.1 

The  sentence  of  dismissal  does  not  attach  any  legal 
disability  to  the  person  dismissed.  He  may  be  re-ap- 
pointed,2 or  may  enlist,  or  hold  civil  office  under  the 
United  States,3  except  where  specifically  disqualified 
therefrom  by  law.4 

814.  Art.  107.  No  sentence  of  a  court=martial  appointed  by 
the  commander  of  a  division  or  of  a  separate  brigade  of  troops, 
directing  the  dismissal  of  an  officer,  shall  be  carried  into  exe- 
cution until  it  shall  have  been  confirmed  by  the  general  command- 
ing  the  army  in  the  field  to  which  the  division  or  brigade  belongs.5 

In  order  to  give  effect  to  the  sentence  and  life  to  the 
proceedings  the  action  of  approval  of  the  commander  of 
the  division  or  separate  brigade  is  necessary;  where  that 
officer  disapproves  the  proceedings  and  sentence  they 
become  null  and  void,  and  there  is  nothing  left  for  the 
general  commanding  the  Army  in  the  field  to  act  upon. 

In  view  of  the  provisions  of  Article  106,  taken  in  con- 
nection with  this  Article,  it  is  held  that  when,  in  time  of 
war,  a  department  commander  is  the  reviewing  authority, 
no  confirmation  of  a  sentence  of  dismissal  by  higher  au- 
thority is  necessary;  but  when  a  division  or  separate 
brigade  commander  is  the  reviewing  authority,  such  sen- 
tence must  be  confirmed  by  the  general  commanding  the 
Army  in  the  field  to  which  the  division  or  brigade  belongs. 
And,  in  the  latter  case,  if  the  division  or  brigade  does  not 
belong  to  a  separate  army  in  the  field  the  commanding 

1  Dig.  Op.  J.  A.  G.  1848. 

2  See  Sec.  1228,  Rev.  Stat. 

3  Dig.  Op.  J.  A.  G.  1201. 

4  See  ante,  Art.  14,  par.  721, 
6  See  ante,  par.  441. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  433 

general  of  the  Army  of  the  United  States  would  be  the 
proper  confirming  authority,  within  the  meaning  of  this 
Article.1  Exception,  however,  must  be  made  as  to  the 
dismissal  of  a  general  officer,  which  is  governed  by  the 
provisions  of  Article  108. 

815.  Art.   108.     No  sentence  of  a  court-martial ,  either  in  time 
of  peace  or  in  time  of  war,  respecting  a  general  officer,  shall  be 
carried  into  execution,  until  it  shall  have  been  confirmed  by  the 
President.2 

Every  sentence  respecting  a  general  officer,  no  matter 
what  its  character,  whether  severe  or  mild,  must  remain 
unexecuted  until  confirmed  by  the  President,  who  thus 
comes  to  a  knowledge  of,  and  passes  upon,  every  derelic- 
tion of  duty  of  these  officers  of  high  rank,  of  which  they 
may  have  been  convicted. 

816.  Art.  109.     All  sentences  of  a  court=martial  may  be  con- 
firmed  and   carried   into  execution   by  the  officer  ordering  the 
court,  or  by  the  officer  commanding  for  the  time  being,  where 
confirmation  by  the  President,  or  by  the  commanding  general  in 
the    field,  or  commander  of  the  department,  is  not  required  by 
these  articles.3 

In  all  but  the  cases  herein  excepted  the  action  of  the 
officer  ordering  the  court,  or  the  officer  commanding  for 
the  time  being,  is  final. 

Where  the  sentence  may  be  lawfully  carried  into  exe- 
cution, on  the  confirmation  of  the  officer  ordering  the  court, 
neither  the  President  nor  Secretary  of  War  has  lawful 
authority  to  approve  or  disapprove  the  same.4 

When  the  sentence  of  a  court-martial,  lawfully  con- 
firmed, has  been  executed,  the  proceedings  are  no  longer 
subject  to  review  by  the  President.5 

817.  Art.  110.      Relating  to  field  officers'  courts,  was  re- 
pealed by  Act  of  June  18,  1898. 

1  Dig.  Op.  J.  A.  G.  338. 

2  See  ante,  par.  439. 

3  See  ante,  par.  428-434,  436,  and  Art.  104,  par.  811. 
4 11  Op.  Attorney-General  251. 

6 15  Id.  291. 


434  MILITARY  LAW 

818.  Art.   111.     Any  officer  who  has  authority  to  carry  into 
execution  the  sentence  of  death,  or  of  dismissal  of  an  officer,  may 
suspend  the  same  until  the  pleasure  of  the  President  shall   be 
known ;   and,  in  such  case,  he  shall  immediately  transmit  to  the 
President  a  copy  of  the  order  of  suspension,  together  with  a  copy 
of  the  proceedings  of  the  court.1 

It  is  to  be  noted  that  although  the  wording  of  the 
Article  indicates  that  copies  only  of  the  proceedings  of  the 
court  and  of  the  order  of  suspension  are  required  to  be 
forwarded  to  the  President,  yet,  in  actual  practice,  the 
original  proceedings,  with  the  action  of  the  reviewing 
officer  thereon,  are  forwarded.  The  effect  of  the  suspen- 
sion is  to  place  in  the  hands  of  the  President  the  oppor- 
tunity to  approve,  disapprove,  or  modify  the  suspended 
sentence. 

819.  Art.   112.     Every   officer   who   is  authorized   to   order   a 
general  court=martial  shall   have  power  to   pardon   or  mitigate 
any  punish  rent  adjudged  by  it,  except  the  punishment  of  death  or 
of  dismissal  of  an  officer.     Every  officer  commanding  a  regiment 
or  garrison  in  which  a  regimental  or  garrison  court=martial  may 
be  held,  shall  have  power  to  pardon  or  mitigate  any  punishment 
which  such  court  may  adjudge.2 

The  military  commander  vested  with  the  power  of 
mitigation  or  pardon  under  this  Article  cannot  delegate 
the  power  to  an  inferior.3 

The  grounds  for  pardon  or  mitigation  depend  upon  the 
circumstances  of  each  case  and  may  be  any  that  the 
commander  believes  will  justify  such  action.  It  is  not 
necessary,  however,  that  he  should  publish  the  reasons 
for  his  action. 

820.  Art.   1 13.     Every  judge=advocate,  or  person  acting  as  such, 
at  any  general  court=martial,  shall,  with  as  much  expedition  as 
the  opportunity  of  time  and  distance  of  place  may  admit,  for= 
ward  the  original  proceedings  and  sentence  of  such  court  to  the 
Judge=Advocate=Qeneral  of  the  Army,  in  whose  office  they  shall 
be  carefully  preserved.4 

1  See  ante,  par.  445.  3  Dig.  Op.  J.  A.  G.  341. 

2  See  Chap.  XXV,  par.  446-455.  4  See  ante,  par.  422. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  435 

This  Article  directs  the  final  disposition  of  the  ^records 
of  general  courts-martial,  and  not,  as  might  appear  on  its 
face,  a  forwarding  of  the  papers  direct  to  the  Judge- 
Advocate-General;  for  the  proceedings  of  the  court  are 
incomplete  and  without  effect  until  acted  upon  by  the 
proper  reviewing  authority.  The  judge-advocate,  there- 
fore, forwards  the  proceedings  direct  to  that  authority, 
and  the  final  reviewing  authority,  after  the  proceedings 
are  completed  by  his  action,  forwards  them  to  the  Judge- 
Advocate-General,  as  the  Article  requires. 

821.  Art.   114.     Every  party  tried  by  a  general  court=martial 
shall,  upon  demand  thereof,  made  by  himself  or  by  any  person 
in  his  behalf,  be  entitled  to  a  copy  of  the  proceedings  and  sen- 
tence of  such  court.1 

The  party  tried  is  the  person  entitled  to  the  copy  of 
the  proceedings  and  sentence,  and  it  will  be  furnished  only 
when  asked  for  by  him  or  by  some  person  "in  his  behalf." 
In  the  latter  case  the  person  applying  should  exhibit 
satisfactory  evidence  that  he  duly  represents  the  accused 
as  his  agent,  attorney,  or  otherwise.2 

Persons  desiring  a  copy,  or  any  part  thereof,  of  the 
record  of  a  court-martial,  who  are  not  entitled  to  it  under 
the  above  Article,  may  apply  therefor  to  the  Secretary  of 
War,  stating  the  reason  for  the  application,  and,  if  it 
is  approved  by  the  Secretary,  it  will  be  referred  to  the 
Judge- Advocate-General,  who  will  have  the  copy  pre- 
pared and  transmitted.3 

COURTS   OF  INQUIRY 

822.  Art.   115.     A  court  of  inquiry,  to  examine  into  the  nature 
of  any  transaction  of,  or  accusation  or  imputation  against,  any 
officer  or  soldier,  may  be  ordered  by  the  President  or  by  any  com= 
manding  officer;    but,  as  courts  of  inquiry  may  be  perverted  to 
dishonorable  purposes,  and  may  be  employed,  in  the  hands  of 
weak  and  envious  commandants,  as  engines  for  the  de  truction 
of  military  merit,  they  shall  never  be  ordered  by  any  command- 

1  See  ante,  par.  423,  424.       2  Dig.  Op.  J.  A.  G.  360.       3  Id.  361. 


436  MILITARY  LAW 

ing  officer,  except  upon  a  demand  by  the  officer  or  soldier  whose 
conduct  is  to  be  inquired  of.1 

823.  Art.  116.     A  court  of  inquiry  shall  consist  of  one  or  more 
officers,  not  exceeding  three,  and  a  recorder,  to  reduce  the  pro= 
ceedings  and  evidence  to  writing.2 

824.  Art.   117.     The  recorder  of  a  court  of  inquiry  shall  ad= 
minister  to  the  members  the  following  oath :   "  You  shall  well  and 
truly  examine  and  inquire,  according  to  the  evidence,  into  the 
matter  now  before  you,  without  partiality,  favor,  affection,  preju= 
dice,  or  hope  of  reward.     So  help  you  God."     After  which  the 
president  of  the  court  shall  administer  to  the  recorder  the  follow- 
ing oath:  "  You,  A.  B.,  do  swear  that  you  will, according  to  your 
best  abilities,  accurately  and  impartially  record  the  proceedings 
of  the  court  and  the  evidence  to  be  given  in  the  case  in  hearing. 
So  help  you  God."  3 

825.  Art.   118.     A  court  of  inquiry,  and  the  recorder  thereof, 
shall  have  the  same  power  to  summon  and  examine  witnesses 
as  is  given  to  courts=martial  and  the  judge=advocates  thereof. 
Such  witnesses  shall  take  the  same  oath  which  is  taken  by  wit= 
nesses  before  courts=martial,  and  the  party  accused  shall  be  per= 
mitted  to  examine  and  cross=examine  them,  so  as  fully  to  in= 
vestigate  the  circumstances  in  question.4 

826.  Art.   119.     A  court  of  inquiry  shall  not  give  an  opinion 
on  the  merits  of  the  case  inquired  of  unless  specially  ordered  to 
do  so.5 

The  court  of  inquiry  is  sometimes  instituted  for  the  pur- 
pose of  aiding  the  President,  or  commanding  officer  upon 
the  demand  of  an  officer  or  soldier,  to  determine  whether 
further  proceedings  in  the  case  should  be  had  before  a 
court-martial,  and  when  this  is  the  case  the  opinion  of 
the  court  should  state  whether  such  further  proceedings 
are  called  for  or  not.  Where  the  object  for  which  the  court 
is  convened  is  to  investigate  a  question  of  military  right, 
responsibility,  or  conduct,  etc.,  the  opinion  will  properly 
be  confined  to  the  special  question  proposed  and  its  legiti- 
mate military  relations.  A  court  of  inquiry  will  rarely 

1  See  ante,  Chap.  XXVI,  par.  459-477. 

2  See  ante,  Chap.  XXVI,  par.  461-463. 

3  See  ante,  Chap.  XXVI,  par.  460-467. 

4  See  ante,  Chap.  XXVI,  par.  469-471. 

5  See  ante,  Chap.  XXVI,  par.  474,  475. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    437 

find  itself  called  upon  to  express  an  opinion  upon  ques- 
tions of  a  purely  legal  character.1 

827.  Art.    120.     The  proceedings  of  a  court  of  inquiry  must 
be  authenticated  by  the  signatures  of  the  recorder  and  the  presi= 
dent  thereof,  and  delivered  to  the  commanding  officer.2 

The  " commanding  officer"  to  whom  the  proceedings 
are  to  be  delivered  is  the  President,  or  the  commanding 
officer,  depending  upon  which  authority  convened  the 
court. 

828.  Art.   121.     The   proceedings  of  a  court  of  inquiry   may 
be  admitted  as  evidence  by  a  court=martial,  in  cases  not  capital 
nor  extending  to  the  dismissal  of  an  officer:    Provided,    That 
the  circumstances   are  such  that   oral  testimony  cannot  be  ob- 
tained.3 

While  the  proceedings  of  a  court  of  inquiry  cannot  be 
admitted  as  evidence  on  the  merits  of  the  case,  upon  a 
trial  before  a  court-martial  of  an  offense  for  which  sen- 
tence of  dismissal  will  be  mandatory  upon  conviction, 
yet  upon  the  trial  of  such  an  offense,  as  upon  any  other, 
such  proceedings,  properly  authenticated,  would  be  ad- 
missible in  evidence  for  the  purpose  of  impeaching  the 
statements  of  a  witness  upon  the  trial  who,  it  was  pro- 
posed to  show,  had  made  quite  different  statements  upon 
a  hearing  before  a  court  of  inquiry.4 

COMMAND 

829.  Art.   122.     If,  upon  marches,  guards,  or  in  quarters,  dif- 
ferent corps  of  the  Army  happen  to  join  or  do  duty  together,  the 
officer  highest  in  rank  of  the  line  of  the  Army,  Marine  Corps,  or 
militia,  by  commission,  there  on  duty  or  in  quarters,  shall  com- 
mand the  whole,  and  give  orders  for  what  is  needful  to  the  service, 
unless  otherwise  specially  directed  by  the  President,  according  to 
the  nature  of  the  case. 

The  purpose  of  this  Article  is  to  prevent  question  as  to 
right  of  command  when  "  different  corps  of  the  Army  " — 

1  Dig.  Op.  J.  A.  G.  371.  3  See  ante,  par.  478. 

2  See  ante,  par.  474.  4  Dig.  Op.  J.  A.  G.  372. 


438  MILITARY  LAW 

which  is  here  used  in  a  general  sense  to  mean  all  arms 
and  separate  and  distinct  branches  of  the  military 
establishment — meet  together,  by  designating  the  officer 
highest  in  rank,  in  the  line  of  the  forces  then  present,  as 
the  commander  of  the  whole ;  except  where  the  President 
otherwise  specially  assigns  one  to  command. 

The  words  " corps  of  the  Army"  include  not  only  the 
infantry,  cavalry,  and  artillery,  but  the  various  depart- 
ments, or  individual  officers,  included  under  the  general 
term  staff,  and  in  this  Article  the  word  " corps"  is  inter- 
preted to  mean  "not  only  an  organized  body  or  a  com- 
plete portion  of  a  force,  but  any  officered  detachment 
however  small,  or  a  single  officer,  representing  such  an 
organization  or  portion."  l 

The  Article  is  intended  to  comprehend  not  only  cases 
where  different  corps  are  employed  together  on  some 
specific  duty  under  express  orders,  but  where,  by  chances 
of  an  engagement,  a  march,  or  other  incident  of  the  service, 
such  corps  meet  and  combine  in  any  military  movement 
or  in  the  occupation  of  the  same  camp,  garrison,  or  post. 
A  mere  fortuitous  and  temporary  meeting,  where  the  two 
or  more  bodies  or  detachments  do  not  in  fact  combine,  and 
where  no  occasion  arises  for  the  assumption  of  a  single 
command  over  the  whole,  is  not  contemplated.2  Where, 
also,  the  junior  officer  is  acting  under  specific  orders  from 
a  common  superior,  no  order,  except  in  a  justifiable  emer- 
gency, should  be  given  him  that  will  interfere  with  the 
execution  of  his  orders  from  that  superior. 

VOLUNTEERS 

830.  Art.  123.  In  all  matters  pertaining  to  the  rank,  duties, 
and  rights  of  officers,  the  same  rules  and  regulations  shall  apply 
to  officers  of  the  Regular  Army  and  to  volunteers  commissioned 
in,  or  mustered  into  said  service,  under  the  laws  of  the  United 
States,  for  a  limited  period.3 

1  Winthrop,  Vol.  1,  p.  1082.       2  Id.      3  See  ante,  par.  51,  53,  134. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED    439 

This  Article  recognizes  the  fact  that  in  any  large  war 
the  greater  part  of  our  armies  necessarily  consists  of  volun- 
teers, and,  having  been  mustered  into  the  United  States 
service,  they  are  hereby  placed  upon  the  same  status  as 
to  rank,  duties,  etc.,  as  officers  of  the  permanent  estab- 
lishment. 

Volunteers.  —  The  term  " volunteers"  is  applied  to 
soldiers  of  an  army  raised,  organized,  supported,  and 
maintained  for  a  limited  period  by  the  United  States, 
independently  of  any  State.1  These  forces  usually  come 
into  service  upon  a  call  of  the  President  pursuant  to  ex- 
press authority  to  make  such  call  given  him  by  Congress. 

When  accepted  and  mustered  into  service,  they  be- 
come a  part  of  the  Army  of  the  United  States,  and,  though 
they  become  subject  to  the  Articles  of  War,  the  laws, 
regulations,  and  orders  governing  the  Regular  Army,  yet 
they  are  a  distinct  force,  and  it  has  been  held  by  the 
courts  that  the  words  "other  forces"  as  used  in  the  77th 
Article  of  War  include  the  Volunteer  forces  and  that 
officers  of  the  Regular  Army  are  incompetent  under  said 
Article  to  try  officers  or  soldiers  of  the  Volunteer  forces. 
A  court-martial  constituted  of  officers  of  the  Regular  Army 
for  the  trial  of  a  volunteer  would  be  without  jurisdic- 
tion and  its  judgment  void.2  Officers  of  the  Volunteers 
may,  however,  sit  upon  courts  for  the  trial  of  officers 
or  soldiers  of  the  regular  establishment,  but  not  on  courts 
for  trial  of  militia. 

Officers  of  the  Regular  Army  who  have  been  assigned  to 
and  been  mustered  into  Volunteer  sendee  become  a  part 
of  the  Volunteer  organization  and  can  sit  upon  courts- 
martial,  according  to  their  Volunteer  rank,  for  the  trial  of 
officers  and  soldiers  of  Volunteers.  (But  this^is  now  in 
question.  See  ante,  par.  51,  note.) 

1  Dig.  Op.  J.  A.  G.  2450. 

2Deming  v.  McClaughry,  113  Fed.  Rep.  639,  640;  McClaughry  v. 
Deming,  186  U.  S.  49. 


440  MILITARY  LAW 


THE   MILITIA 

831.  Art.  124.  Officers  of  the  militia  of  the  several  States, 
when  called  into  the  service  of  the  United  States,  shall  on  all 
detachments,  courts=martial,  and  other  duty  wherein  they  may 
be  employed  in  conjunction  with  the  regular  or  volunteer  forces 
of  the  United  States,  take  rank  next  after  all  officers  of  the  like 
grade  in  said  regular  or  volunteer  forces,  notwithstanding  the 
commissions  of  such  militia  officers  may  be  older  than  the  com- 
missions of  the  said  officers  of  the  regular  or  volunteer  forces  of 
the  United  States.1 

The  Militia.2— The  militia  of  the  United  States  is 
recognized  by  the  Constitution,  which  gives  to  Congress 
the  power  to  "provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions,"  and  also  for  organizing,  arming, 
and  disciplining  the  militia,  and  governing  such  part  of 
them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States  respectively  the  appoint- 
ment of  the  officers  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress. 
(Constitution,  Art.  I,  Sec.  8.)  The  Act  of  Congress  ap- 
proved January  21,  1903,  provides  "That  the -militia 
shall  consist  of  every  able-bodied  male  citizen  of  the 
respective  States,  Territories,  and  the  District  of  Columbia, 
and  every  able-bodied  male  of  foreign  birth  who  has  de- 
clared his  intention  to  become  a  citizen,  who  is  more  than 
eighteen  and  less  than  forty-five  years  of  age,  and  shall 
be  divided  into  two  classes — the  organized  militia,  to  be 
known  as  the  National  Guard  of  the  State,  Territory,  or 
District  of  Columbia,  or  by  such  other  designations  as 
may  be  given  them  by  the  laws  of  the  respective  States 
or  Territories,  and  the  remainder  to  be  known  as  the 
reserve  militia." 

1  See  ante,  par.  51,  53,  134. 

2  See  Act  January  21,  1903,  32  Stat.  at  Large,  p.  775. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  441 

Exemption. — The  Vice-President  of  the  United  States, 
the  judicial  and  executive  officers  of  the  government, 
members  and  officers  of  each  House  of  Congress,  persons 
in  the  military  and  naval  service  of  the  United  States, 
and  certain  persons  who  are  in  the  performance  of  desig- 
nated public  functions,  or  employed  in  or  upon  works  of 
public  utility,  or  in  sea  service,  members  of  religious  sects 
whose  creed  forbids  them  to  participate  in  war,  and  those 
who  may  be  exempted  by  the  laws  of  the  respective  States 
or  Territories,  are  exempted  from  duty  without  regard 
to  age. 

Organization. — The  organization,  armament,  and  dis- 
cipline of  the  militia  shall  be  the  same  as  that  which  is 
now  or  may  hereafter  be  prescribed  for  the  Regular  and 
Volunteer  Armies  of  the  United  States.  Such  organiza- 
tion, etc.,  is  to  be  made  within  five  years  from  the  date  of 
this  Act  (January  21,  1903).  In  time  of  peace,  the  Presi- 
dent of  the  United  States  may  by  order  fix  the  minimum 
number  of  enlisted  men  in  each  company,  troop,  battery, 
signal  corps,  engineer  corps,  and  hospital  corps. 

How  Called  into  Service. — Whenever  the  United  States 
is  invaded,  or  in  danger  of  invasion,  or  of  rebellion  against 
the  authority  of  the  Government  of  the  United  States,  or 
he  is  unable,  with  other  forces  at  his  command,  to  execute 
the  laws  of  the  Union  in  any  part  thereof,  the  President 
may  call  forth,  for  a  period,  which  he  may  specify  in  his 
call,  not  exceeding  nine  months,  such  number  of  the 
militia  as  he  may  deem  necessary  to  repel  such  invasion, 
suppress  such  rebellion,  or  to  enable  him  to  execute  such 
laws,  and  may  issue  his  orders  for  that  purpose  to  such 
officers  of  the  militia  as  he  may  think  proper.  The  militia 
when  so  called  must  continue  to  serve  during  the  term 
specified,  unless  sooner  discharged  by  order  of  the  Presi- 
dent. When  the  militia  of  more  than  one  State  is  called 
into  actual  service  of  the  United  States,  the  President 


442  MILITARY  LAW 

may  apportion  them  among  such  States  or  Territories 
or  to  the  District  of  Columbia  according  to  representa- 
tive population. 

Officers  and  enlisted  men  so  called  forth  and  found  fit 
for  military  service  shall  be  mustered  or  accepted  into 
United  States  service  by  a  duly  authorized  mustering  offi- 
cer of  the  United  States. 

When  Subject  to  Military  Law. — Every  officer  and  en- 
listed man  of  the  militia  who,  upon  being  thus  called  forth, 
refuses  or  neglects  to  present  himself  to  the  mustering 
officer,  shall  be  subject  to  trial  by  court-martial  and  shall 
be  punished  as  such  court-martial  may  direct.  But 
courts-martial  for  the  trial  of  officers  or  men  of  the  militia, 
when  in  the  service  of  the  United  States,  shall  be  com- 
posed of  militia  officers  only.  The  militia  when  called 
into  the  actual  service  of  the  United  States  shall  be  sub- 
ject to  the  same  Rules  and  Articles  of  War  as  the  regu- 
lar troops  of  the  United  States. 

Pay  and  Allowances. — When  the  militia,  or  any  portion 
thereof,  is  called  into  the  actual  service  of  the  United 
States  and  accepted,  their  pay  commences  from  the  day 
of  their  appearing  at  the  company  rendezvous. 

Emergency  Determined  by  the  President. — The  power 
of  determining  whether  an  emergency  exists  justifying 
the  call  of  the  militia  into  the  service  of  the  United 
States  lies  with  the  President  as  Commander-in-Chief  of 
the  Army  and  Navy  of  the  United  States,  who  may  also 
issue  his  orders  to  such  officers  of  the  militia  as  he  may 
think  proper,  and  he  may  designate  the  quotas  or  con- 
tingent to  be  furnished  by  each  State.  His  call  ordinarily 
would  be  made  to  the  Governor  of  the  State,  as  Commander- 
in-Chief  of  the  military  forces  thereof. 

Rank  and  Grade  of  Militia  Officers  in  United  States 
Service. — "  Officers  of  the  militia  of  the  several  States, 
when  called  into  the  service  of  the  United  States,  .  .  . 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  443 

take  rank  next  after  all  officers  of  the  like  grade  in  the 
regular  or  volunteer  forces,  notwithstanding  the  com- 
missions of  such  militia  officers  may  be  older  than  the 
commissions  of  the  said  officers  of  the  regular  or  volunteer 
forces  of  the  United  States." 1 

Militia  in  State  Service. — By  the  Constitutions  of  the 
several  States,  the  Governor  is  ex  officio  Commander-in- 
Chief  of  the  military  forces  thereof,  and  has  the  power 
to  call  the  militia  into  the  service  of  the  State  whenever 
in  his  opinion  public  exigency  demands  it. 

Conscription. — The  United  States  may  also,  if  neces- 
sary, obtain  the  service  of  militia  by  exercise  of  the  right 
of  conscription.  This  right  was  exercised  during  the  War 
of  the  Rebellion  in  Acts  of  July  17,  1862,  March  3,  1863, 
and  February  24,  1864.  These  Acts  provided  for  a  na- 
tional enrollment  under  the  authority  of  the  United 
States,  for  an  apportionment  of  quotas  in  accordance 
therewith,  and  authorized  such  quotas  to  be  filled  by 
conscription  in  the  several  districts  into  which  each 
of  the  States  was  divided.  Certain  classes  of  persons 
were  exempted  from  the  operation  of  the  conscription 
law,  and  drafted  men  were  released  from  service  upon 
the  presentation  of  acceptable  substitutes  or  by  the  pay- 
ment of  a  sum  specified  in  the  statute.  Those  failing  to 
report,  without  furnishing  a  substitute  or  payment  of  the 
sum  fixed  by  statute,  were  to  be  deemed  deserters  and 
punished  accordingly. 

The  militia  being  called  into  the  service  for  a  limited 
period  of  time,  not  to  exceed  nine  months,  the  experience 
of  officers  of  such  forces  will  be  comparatively  small  and 
does  not  justify  the  placing  them  on  an  equality  in  rank 
with  either  regulars  or  volunteers,  when  associated  with 
them,  who,  having  longer  periods  of  service,  become  more 
experienced  and  better  qualified  for  the  duties  and  emer- 
» 124th  Article  of  War. 


444  MILITARY  LAW 

gencies  of  command  in  war.  While  militia  officers  retain 
command  in  their  grade,  they  take  rank  therein  after  all 
officers  of  regulars  or  volunteers  of  like  grade,  notwith- 
standing the  commission  of  such  militia  officers  is  of 
older  date  than  the  commission  of  the  regular  or  volunteer 
officers  in  the  same  grade. 

EFFECTS  OF  DECEASED  OFFICERS  AND  SOLDIERS 
832.  Art.  125.  In  case  of  the  death  of  any  officer,  the  major 
of  nis  regiment,  or  the  officer  doing  the  major's  duty,  or  the  sec- 
ond officer  in  command  at  any  post  or  garrison,  as  the  case  may 
be,  shall  immediately  secure  all  his  effects  then  in  camp  or  quar- 
ters, and  shall  make,  and  transmit  to  the  office  of  the  Depart- 
ment of  War,  an  inventory  thereof.1 

The  death  of  an  officer,  with  place,  cause,  day,  and 
hour,  will  be  reported  without  delay  by  telegraph  by  his 
immediate  commander  directly  to  The  Military  Secretary 
of  the  Army,  and  also  to  the  department  commander.  If 
he  dies  absent  from  his  station  it  is  the  duty  of  any  officer 
having  cognizance  of  the  fact  to  make  this  report.2 

The  inventories  of  effects,  as  required  by  this  Article,  will 
be  transmitted  to  The  Military  Secretary  of  the  Army.  If 
legal  representatives  take  possession  of  the  effects,  the  fact 
will  be  stated  in  the  inventory.3  If  no  legal  representatives 
are  present  to  secure  the  effects,  a  list  will  be  sent  to  the 
nearest  representative  of  the  deceased.  If,  at  the  end  of 
two  months,  they  are  not  called  for,  the  effects,  except 
sword,  watches,  personal  papers,  trinkets,  and  similar 
articles,  which  are  to  be  labelled  and  sent  through  The 
Military  Secretary  to  the  Auditor  for  the  War  Depart- 
ment, will  be  sold  at  auction  for  the  benefit  of  those  legally 
entitled  to  them.4 

A  board  of  officers,  to  consist  of  three  if  practicable, 
will  be  convened  by  his  commanding  officer  to  inventory 

1  See  ante,  par.  526. 

2  A.  R.  83,  as  amended  by  G.  O.  115,  1905. 

3  A.  R.  84. 

4  A.  R.  85. 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  445 

and  make  returns  for  any  public  property  or  funds  of 
which  the  deceased  may  have  been  in  charge.  These 
returns  will  be  forwarded  to  the  chief  of  the  bureau  to 
which  the  property  or  funds  belong. 

The  remains  of  officers  who  die  on  duty  within  the 
continental  limits  of  the  United  States  will  be  enclosed 
in  a  coffin  and  transported  to  the  nearest  military  post, 
or  national  cemetery,  for  burial.  The  remains  of  those 
who  are  killed  in  action,  die  at  a  military  camp  or  in  the 
field  or  hospital  in  Alaska  or  at  places  outside  the  con- 
tinental limits  of  the  United  States,  or  while  on  voyage 
at  sea,  will,  if  desired  by  relatives  or  friends,  be  trans- 
ported to  their  homes  for  interment,  the  cost  of  trans- 
portation being  paid  from  funds  specially  appropriated 
for  that  purpose.  Other  expenses  of  burial  are  limited 
by  regulations.1 

The  officer  taking  possession  of  the  property  and  effects 
of  the  deceased  is  not  an  administrator  and  therefore 
has  no  authority  to  institute  an  action  at  law  for  the 
collection  of  any  debt  due  the  estate  or  for  property  with- 
held therefrom;  nor  can  he  act  upon  the  effects  left  else- 
where than  at  the  "camp  or  quarters"  where  the  officer 
died.2 

833.  Art.  126.  In  case  of  the  death  of  any  soldier,  the  com- 
manding officer  of  his  troop,  battery,  or  company  shall  immediately 
secure  all  his  effects  then  in  camp  or  quarters,  and  shall,  in  the 
presence  of  two  other  officers,  make  an  inventory  thereof,  which 
he  shall  transmit  to  the  office  of  the  Department  of  War. 

Similar  rules  exist  relating  to  the  disposal  of  the  re- 
mains of  enlisted  men  as  those  relating  to  officers,  except 
that,  if  the  commanding  officer  deems  proper,  the  burial 
may  be  at  the  place  of  death,  when  a  full  report  of  the 
facts  and  reasons  will  be  made  to  The  Military  Secretary 
of  the  Army;  and  where  the  death  occurs  in  Alaska  or 

*  See  A.  R.  87. 

2  Winthrop,  Vol.  1,  p.  1093;  Dig.  Op.  J.  A.  G.  373. 


446  MILITARY  LAW 

outside  the  continental  limits  of  the  United  States,  or  at 
sea,  the  request  for  transportation  to  the  home  of  the 
deceased  must  be  made  by  relatives  only,  and  the  ex- 
pense of  burial,  other  than  the  cost  of  transportation,  is 
also  limited  by  regulations.1 

Where  the  soldier  dies  within  the  continental  limits  of 
the  United  States,  except  when  killed  in  battle,  there  is 
no  authority  for  the  shipment  of  the  remains  to  the  home 
of  the  soldier  at  the  request  of  relatives.2 

The  commanding  officer,  having  complied  with  the  pro- 
visions of  this  Article,  should  notify  the  nearest  relative 
of  the  fact  of  death  of  the  soldier.3 

Effects  of  the  deceased  soldier  not  claimed  within  a 
reasonable  time  are  to  be  sold  by  a  council  of  administra- 
tion under  supervision  of  the  post  commander,  and  the 
proceeds  transferred  to  the  soldiers'  immediate  com- 
mander, by  whom  they  will  be  deposited  with  a  pay- 
master to  the  credit  of  the  United  States.  Duplicate 
receipts  will  be  taken,  one  to  be  sent  direct  to  The  Mili- 
tary Secretary  of  the  Army  and  the  other  retained  with 
the  appropriate  records.  There  is  no  authority  for  offi- 
cers to  pay  the  debts  of  deceased  soldiers.  Watches, 
trinkets,  personal  papers,  and  keepsakes  will  not  be  sold, 
but,  labelled  with  the  name,  rank,  and  organization  of  the 
owner,  will  be  sent  directly  to  The  Military  Secretary  of 
the  Army,  to  be  forwarded  to  the  Auditor  for  the  WTar 
Department  for  the  benefit  of  those  legally  entitled  to 
them.  The  above  provision  will  also  apply,  as  far  as 
practicable,  hi  the  cases  of  deceased  soldiers  on  the  re- 
tired list  of  the  Army  whose  effects  may  come  within  the 
control  of  the  military  authorities.4 

1  See  A.  R.  165. 

2  See  Cir.  66,  War  Department,  1905. 

3  A.  R.  160. 

4  A.  R.  161,  162;   G.  O.  144,  War  Department,  1906;   Act  June  30, 
1906  (34  Stat.  at  Large,  p.  750). 


THE  ARTICLES  OF  WAR  SEPARATELY  CONSIDERED  447 

The  "net  proceeds"  to  be  forwarded  to  the  legal  repre- 
sentatives of  the  deceased,  as  provided  in  paragraph  161, 
Army  Regulations,  relates  to  the  proceeds  of  the  sale  of 
the  effects  of  a  deceased  soldier  after  the  necessary  ex- 
penses of  collection  and  sale  have  been  deducted.  The 
commander  has  no  power  as  administrator  and  therefore 
cannot  pay  debts  of  the  deceased  from  the  net  proceeds. 

The  "accounting"  is  for  property  in  the  "camp  or 
quarters"  where  the  soldier  died;  there  is  no  authority 
under  this  Article  to  secure  effects  left  elsewhere. 
"Upon  accounting  to  the  duly  qualified  legal  representa- 
tive as  directed  in  the  Article,  the  responsibility  of  the 
officer  is  discharged,  and  it  remains  for  the  representative 
to  dispose  of  the  property  according  to  the  law  applicable 
to  the  case."  l 

834.  Art.   127.     Officers  charged  with  the  care  of  the  effects 
of  deceased  officers  or  soldiers  shall  account  for  and  deliver  the 
same,  or  the  proceeds  thereof,  to  the  legal  representatives  of  such 
deceased  officers  or  soldiers.     And  no  officer  so  charged  shall 
be  permitted  to  quit  the  regiment  or  post  until  he  has  deposited 
in  the  hands  of  the  commanding  officer  all  the  effects  of  such 
deceased  officers  or  soldiers  not  so  accounted  for  and  delivere  \ 

This  Article  requires  that  the  responsibility  for  the 
property  of  deceased  officers  or  soldiers  be  promptly  as- 
sumed, and  the  property  accounted  for,  by  prohibiting 
the  absence  of  any  officer  from  his  regiment  or  post 
until  he  has  completed  his  accounting  and  is  therefore 
released  from  the  responsibility  therefor.2 

PUBLICATION   OF   ARTICLES 

835.  Art.   128.     The  foregoing  articles  shall  be  read  and  pub- 
lished, once  in  every  six  months,  to  every  garrison,  regiment, 
troop,  or  company  in  the  service  of  the  United  States,  and  shall  be 
duly  observed  and  obeyed  by  all  officers  and  soldiers  in  said  service. 

1  Dig.  Op.  J.  A.  G.  373. 

2  For  law  regulating  the  disposition  of  the   property  of  deceased 
officers  or  enlisted  men  of  the  Army,  of  less  than  five  hundred  dollars 
in  value,  where  no  demand  therefor  is  made  by  a  duly  appointed 
legal  representative,  see  Act  June  30,  1906  (34  Stat.  at  Large,  p.  750). 


448  MILITARY  LAW 

In  order  that  officers  and  soldiers  may  be  familiar  with 
the  laws  by  which  they  are  governed,  this  Article  requires 
the  reading  and  publication  of  the  foregoing  Articles  of 
War  to  all  troops  in  the  United  States  service  at  least 
once  in  every  six  months,  and  enjoins  observance  thereof, 
and  obedience  thereto,  upon  all  officers  and  soldiers  in 
the  service. 

A  failure  to  make  such  publication  is  a  neglect  of  duty, 
and  of  obedience  to  law,  on  the  part  of  commanders, 
and  it  has  frequently  been  pleaded  and  made  a  ground 
for  mitigation  of  the  punishment  of  soldiers,  on  their 
claim  that  they  were  not  properly  informed  of  the  law, 
because  of  this  lack  of  publication,  relating  to  the  offense 
of  which  they  had  been  convicted. 

OTHER  STATUTORY  PROVISIONS  AFFECTING  THE  ARMY 

836.  Sec.  1343,  R.  S.  All  persons  who,  in  time  of  war,  or 
of  rebellion  against  the  supreme  authority  of  the  United  States, 
shall  be  found  lurking  or  acting  as  spies,  in  or  about  any  of  the 
fortifications,  posts,  quarters,  or  encampments  of  any  of  the 
armies  of  the  United  States,  or  elsewhere,  shall  be  triable  by  a 
general  court=martial,  or  by  a  military  commission,  and  shall, 
on  conviction  thereof,  suffer  death.1 

"A  spy  is  a  person  who  secretly,  in  disguise  or  under 
false  pretenses,  obtains,  or  seeks  to  obtain,  information 
in  the  zone  of  operations  of  a  belligerent,  with  the  inten- 
tion of  communicating  it  to  the  enemy."  2 

The  authority  for  trial  by  general  court-martial  under 
this  section  applies  to  "all  persons"  and  therefore  in- 
cludes civilians;  generally  spies  are  persons  in  some  way 
connected  with,  or  employed  by,  the  military  power  of 
the  country  with  which  we  are  at  war.  An  officer  or 

1  See  ante,  par.  54. 

2  Instructions  for  the  goveinment  of  armies  of  the  United  States  in 
time  of  war,  G.  O.  100,  A.  G.  O.,  1863,  as  amended;   Art.  XII,  Field 
Service  Regulations,  U.  S.  Army,  1905,  par.  752, 


OTHER  STATUTORY  PROVISIONS  449 

soldier  of  the  enemy  who  is  found  in  or  near  a  camp  or 
post  of  our  army  disguised  in  the  uniform  or  overcoat  of  a 
United  States  soldier  is  prima  facie  a  spy  and  liable  to 
trial  as  such;  or  where  he,  without  authority  and  covertly, 
penetrates  our  lines  disguised  as  a  civilian,  he  is  presumed 
to  have  come  in  the  character  of  a  spy;  but  he  may, 
by  satisfactory  evidence  of  his  having  some  other  and 
innocent  purpose,  rebut  the  presumption  against  him  and 
show  that  his  offense  was  simply  a  violation  of  the-  laws 
of  war.1 

The  essential  elements  of  the  offense  consist  in  the 
attempted  concealment,  disguise,  or  deceit,  with  intent 
to  secure  information  to  communicate  to  the  enemy. 
Soldiers  not  disguised,  or  soldiers  or  civilians  carrying 
out  their  mission  openly,  or  individuals  sent  in  balloons, 
to  deliver  dispatches  or  maintain  communication  be- 
tween the  various  parts  of  an  army  or  territory  are  not 
to  be  considered  as  spies.2 

The  spy  must  be  at  the  time  in  flagrante  delicto, — taken 
in  the  very  act  of  committing  the  offense.  If  he  succeeds 
in  making  his  return  to  his  own  army  or  country,  the  crime 
does  not  follow  him,  and  if  subsequently  captured  in  battle 
or  otherwise,  he  cannot  properly  be  brought  to  trial  as 
a  spy.3 

A  spy  is  punishable  with  death  by  hanging  whether  he 
succeed  or  not  in  obtaining  the  information  or  conveying 
it  to  the  enemy.  But  though  taken  in  the  act  he  shall 
not  be  punished  until  after  trial  and  conviction.4 

The  trial  by  military  commission  also  authorized  in 
this  Article  is  equally  authorized  by  the  laws  of  war,  the 
military  commission  being  specifically  a  war  tribunal.5 

1  Dig.  Op.  J.  A.  G.  2346. 

2  See  Field  Service  Regulations,  U.  S.  Army,  1905,  par.  753. 

3  Id.,  par.  756;  Dig.  Op.  J.  A.  G.  2351. 

4  Field  Service  Regulations,  U.  S.  Army,  1905,  par.  754. 

5  See  ante,  par.  26,  32,  682-687. 


450  MILITARY  LAW 

837.  Sec.  5306,  R.  S.     Every  officer  of  the  United  States,  civil, 
military,  or  naval,   and  every  sutler,  soldier,   marine,  or  other 
person,  who  takes,  or  causes  to  be  taken  into  a  State  declared 
to  be  in  insurrection,  or  to  any  other  point  to  be  thence  taken 
into  such  State,  or  who  transports  or  sells,  or  otherwise  disposes 
of  therein,  any  goods,  wares,  or  merchandise  whatsoever,  except 
in  pursuance  of  license  and  authority  of  the  President,  as  pro= 
vided  in  this  title  [see  Sec.  5304],  or  who  makes  any  false  state= 
ment  or   representation    upon   which    license  and   authority    is 
granted  for  such   transportation,   sale,  or  other  disposition,   or 
who,  under  any  license  or  authority  obtained,  wilfully  and  know= 
ingly  transports,  sells,  or  otherwise  disposes  of  any  other  goods, 
wares,  or  merchandise  than  such  as  are  in  good  faith  so  licensed 
and  authorized,  or  who  wilfully  and  knowingly  transports,  sells, 
or  disposes  of  the  same,  or  any  portion  thereof,  in  violation  of 
the  terms  of  such  license  or  authority,  or  of  any  rule  or  regulation 
prescribed  by  the  Secretary  of  the  Treasury  concerning  the  same, 
or  who  is  guilty  of  any  act  of  embezzlement,  of  willful  misap= 
propriation  of  public  or  private  money  or  property,  of  keeping 
false  accounts,  or  of  wilfully  making  any  false  returns,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  fined  not  more 
than  five  thousand  dollars,  and  imprisoned  in  the  penitentiary  not 
more  than  three  years.     Violations  of  this  section  shall  be  cog- 
nizable before  any  court,  civil  or  military,  competent  to  try  the 
same. 

This  section  makes  cognizable  by  any  court,  civil  or 
military,  competent  to  try  the  same,  the  offense  of  trading 
without  license  with  any  State  declared  to  be  in  insurrec- 
tion, by  every  officer  of  the  United  States,  civil,  military, 
or  naval,  and  every  sutler,  soldier,  marine,  or  other 
person. 

838.  Sec.  5313,  R.  S.     All   persons   in   the  military  or   naval 
service  of  the  United  States  are  prohibited  from  buying  or  sell- 
ing, trading,  or  in  any  way  dealing  in  captured  or  abandoned 
property,  whereby  they  shall  receive  or  expect  any  profit,  benefit, 
or  advantage  to  themselves,  or  any  other  person,  directly  or  in- 
directly connected  with  them ;  and  it  shall  be  the  duty  of  such 
person   whenever  such   property  comes   into    his    possession  or 
custody,  or  within  his  control,  to  give  notice  thereof  to  some 
agent,  appointed  by  virtue  of  this  title  [see  Sec.  5305],  and  to  turn 
the  same  over  to  such  agent  without  delay.     Any  officer  of  the 


OTHER  STATUTORY  PROVISIONS  451 

United  States,  civil,  military,  or  naval,  or  any  sutler,  soldier,  or 
marine,  or  other  person  who  shall  violate  any  provision  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be 
fined  not  more  than  five  thousand  dollars,  and  imprisoned  in  the 
penitentiary  not  more  than  three  years.  Violations  of  this  sec= 
tion  shall  be  cognizable  before  any  court,  civil  or  military,  compe- 
tent to  try  the  same. 

This  section  forbids  the  buying,  selling,  trading,  or 
dealing  in  captured  or  abandoned  property,  by  all  per- 
sons in  the  military  or  naval  service  of  the  United  States, 
and  makes  the  offense  in  such  cases  cognizable  before  any 
court,  civil  or  military,  competent  to  try  the  same. 

839.  Section  1014,  R.  S.  For  any  crime  or  offense  against  the 
United  States,  the  offender  may,  by  any  justice  or  judge  of  the 
United  States,  or  by  any  commissioner  of  a  circuit  court  to  take 
bail,  or  by  any  chancellor,  judge  of  a  supreme  or  superior  court, 
chief  or  first  judge  of  common  pleas,  mayor  of  a  city,  justice 
of  the  peace,  or  other  magistrate,  of  any  State  where  he  may  be 
found,  and  agreeably  to  the  usual  mode  of  process  against  offen- 
ders in  such  State,  and  at  the  expense  of  the  United  States,  be 
arrested  and  imprisoned,  or  bailed,  as  the  case  may  be,  for  trial 
before  such  court  of  the  United  States  as  by  law  has  cognizance  of 
the  offense.  Copies  of  the  process  shall  be  returned  as  speedily 
as  may  be  into  the  clerk's  office  of  such  court,  together  with  the 
recognizances  of  the  witnesses  for  their  appearance  to  testify  in 
the  case.  And  where  any  o.ffender  or  witness  is  committed  in  any 
district  other  than  that  where  the  offense  is  to  be  tried,  it  shall  be 
the  duty  of  the  judge  of  the  district  where  such  offender  or  witness 
is  imprisoned,  seasonably  to  issue,  and  of  the  marshal  to  execute, 
a  warrant  for  his  removal  to  the  district  where  the  trial  is  to  be 
had. 

This  section  provides  the  method  by  which  offenders 
against  the  laws  of  the  United  States  may  be  arrested 
and  brought  to  trial. 

In  case  of  any  crime  or  offense  against  the  United  States 
complaint  should,  when  possible,  be  made  before  a  justice 
or  judge  of  the  United  States  or  a  United  States  commis- 
sioner; the  United  States  Attorney  should  be  consulted 
and  the  warrant  be  served  by  a  United  States  marshal. 


452  MILITARY  LAW 

Warrant. — To  secure  a  warrant  for  the  arrest  of  any 
person  offending  against  the  laws  of  the  United  States, 
facts  must  be  stated  in  the  affidavit  sufficient  to  give  the 
court  jurisdiction,  and  to  justify  the  issue  of  the  warrant 
by  some  court  or  official  named  in  the  section.  The  order 
of  arrest  is  placed  in  the  hands  of  the  United  States  marshal, 
or  other  officer  authorized  to  execute  the  same. 

A  warrant,  and  the  complaint  under  oath,  on  which 
the  same  is  founded,  to  be  legal,  must  not  only  state  the 
crime  and  the  name  of  the  party  against  whom  accusa- 
tion is  made,  but  also  the  time,  place,  and  nature  of  the 
offense  with  reasonable  certainty.1 

Search  Warrant. — It  may  be  necessary  to  secure  a 
search  warrant  to  recover  stolen  property  or  property 
of  the  United  States  in  the  hands  of  persons  who  have 
illegally  purchased  or  otherwise  unlawfully  secured  the 
same.  To  obtain  such  warrant  there  should  be  a  decla- 
ration of  facts  sufficient  to  constitute  "  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched  and  the  person  or  things 
to  be  seized";2  or,  described  as  near  as  may  be,  so  that 
both  the  property  to  be  searched  for  and  the  place  to  be 
searched  can  be  identified;  and  the  owner  or  occupant  of 
the  place  should  also  be  designated.  The  search  warrant 
being  then  issued  to  the  proper  officer  authorized  to  exe- 
cute the  same,  the  army  officer  or  other  person  making 
the  charge,  and  affidavit  or  declaration  under  oath,  must 
attend  at  the  execution  thereof,  identify  the  articles  and 
show  them  to  the  official  executing  the  warrant,  and  the 
latter  must  see  that  they  answer  the  description  given 
therein.3  Seizures  of  such  property  of  the  United  States 
are  not  "unreasonable  seizures"  and  are  not  within  the 

1  Story  on  the  Constitution,  Vol.  2,  Sec.  1902;    Ex  parte  Buford, 
3  Cranch  (7  U.  S.)  448. 

2  Amendment  IV,  Const.  U.  S. 

3  Boyd  v.  U.  S.,  116  U.  S.  628. 


OTHER  STATUTORY  PROVISIONS  453 

prohibition  of  the  4th  Amendment  to  the  Constitution, 
or  any  other  clause  thereof.1 

The  "  probable  cause,  supported  by  oath  or  affirmation/' 
is  the  oath  or  affirmation  of  persons  who  of  their  own 
knowledge  depose  to  the  facts  which  constitute  the  offense ; 
such  probable  cause  cannot  be  presented  to  an  official 
accuser  or  prosecutor  for  him  to  make  the  oath,  but  must 
be  submitted  to  the  committing  magistrate,  who  may 
exercise  his  judgment  on  the  sufficiency  of  the  grounds 
stated  therein  for  issue  of  the  warrant. 

Section  1014,  Rev.  Stat.  United  -States,  authorizes  the 
usages  of  the  State  to  be  followed  as  to  the  process  against 
offenders.  But  this,  if  it  refers  to  anything  more  than 
the  form  of  the  warrant,  could  not  include  any  usage 
expressly  prohibited  by  the  Constitution.2 

"At  common  law,  even  in  criminal  cases,  the  legality 
of  proceedings  whereby  stolen  goods  may  be  searched 
for  was  formerly  doubted.  But  their  legality  has  long 
been  considered  established  on  the  ground  of  public  neces- 
sity, because,  without  them,  felons  and  other  malefactors 
would  escape  detection";3  and  the  seizing  of  stolen  goods 
is  now  held  authorized  by  the  common  law.4 

At  common  law  also  it  is  usual  for  the  search  warrant 
to  contain  a  direction  to  search  for  the  goods  mentioned 
in  the  daytime,  and  this  would  be  the  proper  rule  to 
follow  in  search  warrants  issued  in  cases  under  the  United 
States  laws  which  authorize  the  seizure  of  the  property 
illegally  in  the  possession  of  any  person.  It  is  specifically 
stated  in  the  law  concerning  searches  by  officers  of  the 
customs,  that  such  searches  shall  be  in  the  daytime.5 


1  Boyd  v.  U.  S.,  116  U.  S.  624. 

2  See  Fed.  Stat.  Annotated,  Vol.  9,  p  254;  U.  S.  v.  Tureaud,  20  Fed. 
Rep.  622. 

8  Am.  and  Eng.  Enc.  of  Law,  Vol.  25,  p.  145. 
4  See  Boyd  v.  U.  S.,  116  U.  S.  623,  628. 
6  Sec.  3066,  Rev.  Stat. 


454  MILITARY  LAW 

In  executing  the  warrant  the  officer  must  adhere  strictly 
to  the  directions  contained  therein  and  search  the  place 
described  in  the  warrant,  and  seize  only  the  goods  which 
the  warrant  directs.  He  may  break  open  an  outer  or 
inner  door  of  a  building  if,  after  proper  notice  of  his 
authority  and  purpose,  he  is  refused  admittance.1 

When  the  official  executing  the  warrant  has  found  the 
property  he  should  bring  it,  with  the  person  in  whose  pos- 
session it  is  found,  before  the  magistrate  who  issued  the 
warrant,  to  be  disposed  of  according  to  law.2 

The  search  warrant  should,  when  possible,  be  secured, 
in  all  cases  of  procedure  against  persons  for  violation  of 
the  federal  laws,  from  a  judge  or  justice  of  the  United 
States,  or  some  United  States  commissioner,  so  that  both 
the  person  and  property,  in  case  of  a  search  warrant,  are 
held  by  United  States  authority. 

The  search  warrant  should  contain  a  command  to  the 
United  States  marshal  or  other  official  to  whom  directed 
for  execution,  to  bring  the  property  found,  together  with 
the  person  in  whose  possession  it  is  found,  before  the 
justice  or  other  official  issuing  it,  "to  be  disposed  of  ac- 
cording to  law." 

In  general  the  United  States  commissioner  is  the  most 
convenient  of  access,  but  if  he  fail  to  issue  the  search 
warrant,  application  should  be  made  to  the  United  States 
court  for  that  district  for  its  issue. 

840.  Bail. — Bail  may  be  admitted  upon  all  arrests  in 
criminal  cases,  where  the  offense  is  not  punishable  by 
death,  by  any  of  the  persons  authorized  to  arrest  and 
imprison  offenders;3  and  it  may  be  admitted  upon  all 
arrests  in  criminal  cases  where  the  punishment  may  be 
death*;  but  in  such  cases  only  by  the  Supreme  Court,  or  a 


1  Am.  and  Eng.  Enc.  of  Law,  Vol.  25,  p.  148. 

2  Id. 

3  Sec.  1015,  Rev.  Stat. 


OTHER  STATUTORY  PROVISIONS  455 

circuit  court,  or  by  a  justice  of  the  Supreme  Court,  a 
circuit  judge,  or  a  judge  of  a  district  court,  who  shall 
exercise  their  discretion  therein,  having  regard  to  the 
nature  and  circumstances  of  the  offense,  and  of  the  evi- 
dence, and  to  the  usages  of  law.1  Excessive  bail  must  not 
be  required.2 

Sec.  1016,  Rev.  Stat. 
2  Amendments  to  the  Constitution  of  the  United  States,  Art.  VIII. 


APPENDICES 


APPENDIX  A.     ARTICLES  OF  WAR. 
APPENDIX  B.     ACT  ESTABLISHING  THE  SUMMARY  COURT. 
APPENDIX  C.     ACT  TO  PREVENT  THE  FAILURE  OF  MILITARY  JUSTICE. 
APPENDIX  D.    EXECUTIVE  ORDER  ESTABLISHING  LIMITS  OF  PUNISH- 
MENT. 
APPENDIX  E.    GENERAL  FORMS.  1 

1.  Forms  for  Charges. 

2.  Statement  of  Service. 

3.  Surgeon's  Report  on  Alleged  Deserter. 

4.  Record  of  a  General  Court-martial. 

5.  Record  of  a  Summary  Court. 

6.  Monthly  Report  of  Summary  Court  Cases. 

7.  Record  of  a  Garrison  Court-martial. 

8.  Record  of  a  Regimental  Court-martial. 

9.  Proceedings  of  a  Retiring  Board. 

10.  Forms  for  Sentences. 

11.  Summons  for  Military  Witness. 

12.  Subpoena  for  Civilian  Witness. 

13.  Subpoena  duces  tecum. 

14.  Subpoena  for  Civilian  Witness  (for  Deposition). 

15.  Return  of  Service. 

16.  Warrant  of  Attachment. 

17.  Interrogatories  and  Deoosition. 

18.  Account  of  Civilian  Witness  not  in  Government 

Employ. 

19.  Account   of    Civilian   Witness    in    Government 

Employ. 

20.  Rules  governing  Accounts  of  Civilian  Witnesses. 

21.  Account  of  Reporter. 

22.  Form  for  Special  Orders. 

23.  Habeas  Cirpus  by  United  States  Court. 

24.  Habeas  Corpus  by  State  Court. 

25.  Instructions  as  to  Returns  to  Writs  of  Habeas 

Corpus. 

26.  Brief  to  be  filed  with  Return  to  a  Writ  of  Habeas 

Corpus  issued  bj-  United  States  Court  in  case 
of  a  Soldier  whose  Discharge  is  sought  under 
Section  1117  Revised  Statutes  (as  minor). 

1  Manual  for  Courts-martial,  edition  1905. 


APPENDIX   A 
ARTICLES   OF  WAR 

SECTION  1342,  R.  S  The  armies  of  the  United  States  shall  be 
governed  by  the  following  rules  and  articles.  The  word  officer,  as 
used  therein,  shall  be  understood  to  designate  commissioned 
officers,  the  word  soldier  shall  be  understood  to  include  non-com- 
missioned officers,  musicians,  artificers,  and  privates,  and  other 
enlisted  men,  and  the  convictions  mentioned  therein  shall  be  under- 
stood to  be  convictions  by  court-martial. 

ARTICLE  1.  Every  officer  now  in  the  Army  of  the  United  States 
shall,  within  six  months  from  the  passing  of  this  act,  and  every 
officer  hereafter  appointed  shall,  before  he  enters  upon  the  duties 
of  his  office,  subscribe  these  rules  and  articles. 

ART.  2.  These  rules  and  articles  shall  be  read  to  every  enlisted 
man  at  the  time  of,  or  within  six  days  after,  his  enlistment,  and 
he  shall  thereupon  take  an  oath  or  affirmation,  in  the  following 
form:  "I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  bear 
true  faith  and  allegiance  to  the  United  States  of  America ;  that 
I  will  serve  them  honestly  and  faithfully  against  all  their  enemies 
whomsoever;  and  that  I  will  obey  the  orders  of  the  President  of 
the  United  States  and  the  orders  of  the  officers  appointed  over 
me,  according  to  the  rules  and  articles  of  war."  This  oath  may 
be  taken  before  any  commissioned  officer  of  the  Army. 

ART.  3.  Every  officer  who  knowingly  enlists  or  musters  into 
the  military  service  any  minor  over  the  age  of  16  years  without 
the  written  consent  of  his  parents  or  guardians,  or  any  minor 
under  the  age  of  16  years,  or  any  insane  or  intoxicated  persons, 
or  any  deserter  from  the  military  or  naval  service  of  the  United 
States,  or  any  person  who  has  been  convicted  of  any  infamous 
criminal  offense,  shall,  upon  conviction,  be  dismissed  from  the 
service,  or  suffer  such  other  punishment  as  a  court-martial  may 
direct. 

ART.  4.  No  enlisted  man,  duly  sworn,  shall  be  discharged  from 
the  service  without  a  discharge  in  writing,  signed  by  a  field  officer 

459 


460  MILITARY  LAW 

of  the  regiment  to  which  he  belongs,  or  by  the  commanding  officer 
when  no  field  officer  is  present ;  and  no  discharge  shall  be  given  to 
any  enlisted  man  before  his  term  of  service  has  expired,  except 
by  order  of  the  President,  the  Secretary  of  War,  the  commanding 
officer  of  a  department,  or  by  sentence  of  a  general  court-martial. 

ART.  5.  Any  officer  who  knowingly  musters  as  a  soldier  a  person 
who  is  not  a  soldier  shall  be  deemed  guilty  of  knowingly  making 
a  false  muster,  and  punished  accordingly. 

ART.  6.  Any  officer  who  takes  money,  or  other  thing,  by  way  of 
gratification,  on  mustering  any  regiment,  troop,  battery,  or 
company,  or  on  signing  muster  rolls,  shall  be  dismissed  from  the 
service,  and  shall  thereby  be  disabled  to  hold  any  office  or  employ- 
ment in  the  service  of  the  United  States. 

ART.  7.  Every  officer  commanding  a  regiment,  an  independent 
troop,  battery,  or  company,  or  a  garrison,  shall,  in  the  beginning 
of  every  month,  transmit  through  the  proper  channels,  to  the 
Department  of  War,  an  exact  return  of  the  same,  specifying  the 
names  of  the  officers  then  absent  from  their  posts,  with  the  reasons 
for  and  the  time  of  their  absence.  And  any  officer  who,  through 
neglect  or  design,  omits  to  send  such  returns,  shall,  on  conviction 
thereof,  be  punished  as  a  court-martial  may  direct. 

ART.  8.  Every  officer  who  knowingly  makes  a  false  return  to 
the  Department  of  War,  or  to  any  of  his  superior  officers,  authorized 
to  call  for  such  returns,  of  the  state  of  the  regiment,  troop,  or 
company,  or  garrison  under  his  command;  or  of  the  arms,  ammu- 
nition, clothing,  or  other  stores  thereunto  belonging,  shall,  on 
conviction  thereof  before  a  court-martial,  be  cashiered.1 

ART.  9.  All  public  stores  taken  from  the  enemy  shall  be  secured 
for  the  service  of  the  United  States;  and  for  neglect  thereof  the 
commanding  officer  shall  be  answerable. 

ART.  10.  Every  officer  commanding  a  troop,  battery,  or  com- 
pany, is  charged  with  the  arms,  accouterments,  ammunition, 
clothing,  or  other  military  stores  belonging  to  his  command,  and 
is  accountable  to  his  colonel  in  case  of  their  being  lost,  spoiled, 
or  damaged  otherwise  than  by  unavoidable  accident,  or  on  actual 
service. 

ART.  11.  Every  officer  commanding  a  regiment  or  an  independ- 
ent troop,  battery,  or  company,  not  in  the  field,  may,  when  actually 
quartered  with  such  command,  grant  furloughs  to  the  enlisted 
men,  in  such  numbers  and  for  such  time  as  he  shall  deem  con- 
sistent with  the  good  of  the  service.  Every  officer  commanding 

1  "Cashiered"  and  "dismissed  from  the  service"  are  now  considered 
practically  synonymous. 


APPENDIX  A  461 

a  regiment,  or  an  independent  troop,  battery,  or  company,  in  the 
field,  may  grant  furloughs  not  exceeding  thirty  days  at  one  time, 
to  five  per  cent  of  the  enlisted  men,  for  good  conduct  in  the  line 
of  duty,  but  subject  to  the  approval  of  the  commander  of  the 
forces  of  which  said  enlisted  men  form  a  part.  Every  company 
officer  of  a  regiment,  commanding  any  troop,  battery,  or  company 
not  in  the  field,  or  commanding  in  any  garrison,  fort,  post,  or  bar- 
rack, may,  in  the  absence  of  his  field  officer,  grant  furloughs  to 
the  enlisted  men,  for  a  time  not  exceeding  twenty  days  in  six 
months,  and  not  to  more  than  two  persons  to  be  absent  at  the  same 
time. 

ART.  12.  At  every  muster  of  a  regiment,  troop,  battery,  or  com- 
pany, the  commanding  officer  thereof  shall  give  to  the  mustering 
officer  certificates,  signed  by  himself,  stating  how  long  absent 
officers  have  been  absent  and  the  reasons  of  their  absence.  And  the 
commanding  officer  of  every  troop,  battery,  or  company  shall  give 
like  certificates,  stating  how  long  absent  non-commissioned  officers 
and  private  soldiers  have  been  absent  and  the  reasons  of  their 
absence.  Such  reasons  and  time  of  absence  shall  be  inserted  in 
the  muster  rolls  opposite  the  names  of  the  respective  absent 
officers  and  soldiers,  and  the  certificates,  together  with  the  muster 
rolls,  shall  be  transmitted  by  the  mustering  officer  to  the  Depart- 
ment of  War  as  speedily  as  the  distance  of  the  place  and  muster 
will  admit. 

ART.  13.  Every  officer  who  signs  a  false  certificate,  relating  to 
the  absence  or  pay  of  an  officer  or  soldier,  shall  be  dismissed  from 
the  service. 

ART.  14.  Any  officer  who  knowingly  makes  a  false  muster  of 
man  or  horse,  or  who  signs,  or  directs,  or  allows  the  signing  of  any 
muster  roll,  knowing  the  same  to  contain  a  false  muster,  shall, 
upon  proof  thereof  by  two  witnesses,  before  a  court-martial, 
be  dismissed  from  the  service,  and  shall  thereby  be  disabled 
to  hold  any  office  or  employment  in  the  service  of  the  United 
States. 

ART.  15.  Any  officer  who,  willfully  or  through  neglect,  suffers 
to  be  lost,  spoiled,  or  damaged,  any  military  stores  belonging  to 
the  United  States,  shall  make  good  the  loss  or  damage,  and  be 
dismissed  from  the  service. 

ART.  16.  Any  enlisted  man  who  sells,  or  willfully  or  through 
neglect  wastes  the  ammunition  delivered  out  to  him,  shall  be 
punished  as  a  court-martial  may  direct. 

ART.  17.  Any  soldier  who  sells,  or  through  neglect  loses  or  spoils 
his  horse,  arms,  clothing,  or  accouterments,  shall  be  punished  as 
a  court-martial  may  adjudge,  subject  to  such  limitations  as  may 


462  MILITARY  LAW 

be  prescribed  by  the  President  by  virtue  of  the  power  vested  in 
him.1 

ART.  18.  Any  officer  commanding  in  any  garrison,  fort,  or  bar- 
racks of  the  United  States  who,  for  his  private  advantage,  lays 
any  duty  or  imposition  upon,  or  is  interested  in,  the  sale  of  any 
victuals,  liquors,  or  other  necessaries  of  life,  brought  into  such 
garrison,  fort,  or  barracks,  for  the  use  of  the  soldiers,  shall  be 
dismissed  from  the  service. 

ART.  19.  Any  officer  who  uses  contemptuous  or  disrespectful 
words  against  the  President,  the  Vice-President,  the  Congress  of 
the  United  States,  or  the  chief  magistrate  or  legislature  of  any  of 
the  United  States  in  which  he  is  quartered,  shall  be  dismissed 
from  the  service,  or  otherwise  punished,  as  a  court-martial  may 
direct.  Any  soldier  who  so  offends  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  20.  Any  officer  or  soldier  who  behaves  himself  with  dis- 
respect toward  his  commanding  officer  shall  be  punished  as  a 
court-martial  may  direct. 

ART.  21.  Any  officer  or  soldier  who,  on  any  pretense  whatsoever, 
strikes  his  superior  officer,  or  draws  or  lifts  up  any  weapon,  or 
offers  any  violence  against  him,  being  in  the  execution  of  his  office, 
or  disobeys  any  lawful  command  of  his  superior  officer,2  shall  suffer 
death,  or  such  other  punishment  as  a  court-martial  may  direct. 

ART.  22.  Any  officer  or  soldier  who  begins,  excites,  causes,  or 
joins  in  any  mutiny  or  sedition,  in  any  troop,  battery,  company, 
party,  post,  detachment,  or  guard,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

ART.  23.  Any  officer  or  soldier  who,  being  present  at  any  mutiny 
or  sedition,  does  not  use  his  utmost  endeavor  to  suppress  the  same, 
or  having  knowledge  of  any  intended  mutiny  or  sedition,  does  not, 
without  delay,  give  information  thereof  to  his  commanding  officer, 
shall  suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

ART.  24.  All  officers,  of  what  condition  soever,  have  power 
to  part  and  quell  all  quarrels,  frays,  and  disorders,  whether  among 
persons  belonging  to  his 3  own  or  to  another  corps,  regiment,  troop, 
battery,  or  company,  and  to  order  officers  into  arrest,  and  non- 

1  17th  A.  W.,  as  amended  by  Act  of  July  27,  1892.     See  G.  O.  57 
A.  G.  O.,  1892. 

2  Disobedience  of  an  order  of  a  contract  surgeon,  of  a  dental  surgeon, 
of  a  veterinarian,  and  a  non-commissioned  officer  should  be  charged 
under  the  62d  Article  of  War.     See  Art.  62,  Form  d,  Appendix  E,  1. 
Disobedience  of  an  order  by  a  general  prisoner  also  should  be  charged 
under  the  62d  Article  of  War. 

3  Sic  in  Revised  Statutes. 


APPENDIX  A  463 

commissioned  officers  and  soldiers  into  confinement,  who  take 
part  in  the  same,  until  their  proper  superior  officer  is  acquainted 
therewith.  And  whosoever,  being  so  ordered,  refuses  to  obey 
such  officer  or  non-commissioned  officer,  or  draws  a  weapon  upon 
him,  shall  be  punished  as  a  court-martial  may  direct. 

ART.  25.  No  officer  or  soldier  shall  use  any  reproachful  or  pro- 
voking speeches  or  gestures  to  another.  Any  officer  who  so  offends 
shall  be  put  in  arrest.  Any  soldier  who  so  offends  shall  be  confined, 
and  required  to  ask  pardon  of  the  party  offended  in  the  presence 
of  his  commanding  officer. 

ART.  26.  No  officer  or  soldier  shall  send  a  challenge  to  another 
officer  or  soldier  to  fight  a  duel,  or  accept  a  challenge  so  sent. 
Any  officer  who  so  offends  shall  be  dismissed  from  the  service. 
Any  soldier  who  so  offends  shall  suffer  such  punishment  as  a  court- 
martial  may  direct. 

ART.  27.  Any  officer  or  non-commissioned  officer,  commanding 
a  guard,  who,  knowingly  and  willingly,  suffers  any  person  to  go 
forth  to  fight  a  duel  shall  be  punished  as  a  challenger;  and  all 
seconds  or  promoters  of  duels,  and  carriers  of  challenges  to  fight 
duels,  shall  be  deemed  principals,  and  punished  accordingly.  It 
shall  be  the  duty  of  any  officer  commanding  an  army,  regiment, 
troop,  battery,  company,  post,  or  detachment,  who  knows  or  has 
reason  to  believe  that  a  challenge  has  been  given  or  accepted  by 
any  officer  or  enlisted  man  under  his  command,  immediately  to 
arrest  the  offender  and  bring  him  to  trial. 

ART.  28.  Any  officer  or  soldier  who  upbraids  another  officer  or 
soldier  for  refusing  a  challenge  shall  himself  be  punished  as  a  chal- 
lenger; and  all  officers  and  soldiers  are  hereby  discharged  from 
any  disgrace  or  opinion  qf  disadvantage  which  might  arise  from 
their  having  refused  to  accept  challenges,  as  they  will  only  have 
acted  in  obedience  to  the  law,  and  have  done  their  duty  as  good 
soldiers,  who  subject  themselves  to  discipline. 

ART.  29.  Any  officer  who  thinks  himself  wronged  by  the  com- 
manding officer  of  his  regiment,  and,  upon  due  application  to  such 
commander,  is  refused  redress,  may  complain  to  the  general  com- 
manding in  the  State  or  Territory  where  such  regiment  is  stationed. 
The  general  shall  examine  into  said  complaint  and  take  proper 
measures  for  redressing  the  wrong  complained  of;  and  he  shall, 
as  soon  as  possible,  transmit  to  the  Department  of  War  a  true 
statement  of  such  complaint,  with  the  proceedings  had  thereon. 

ART.  30.  Any  soldier  who  thinks  himself  wronged  by  any 
officer  may  complain  to  the  commanding  officer  of  his  regiment, 
who  shall  summon  a  regimental  court-martial  for  the  doing  of 
justice  to  the  complainant.  Either  party  may  appeal  from  such 


464  MILITARY  LAW 

regimental  court-martial  to  a  general  court-martial;  but  if,  upon 
such  second  hearing,  the  appeal  appears  to  be  groundless  and 
vexatious,  the  party  appealing  shall  be  punished  at  the  discretion 
of  said  general  court-martial.1 

ART.  31.  Any  officer  or  soldier  who  lies  out  of  his  quarters, 
garrison,  or  camp,  without  leave  from  his  superior  officer,  shall  be 
punished  as  a  court-martial  may  direct. 

ART.  32.  Any  soldier  who  absents  himself  from  his  troop, 
battery,  company,  or  detachment,  without  leave  from  his  com- 
manding officer,  shall  be  punished  as  a  court-martial  may  direct. 

ART.  33.  Any  officer  or  soldier  who  fails,  except  when  prevented 
by  sickness  or  other  necessity,  to  repair,  at  the  fixed  time,  to  the 
place  of  parade,  exercise  or  other  rendezvous  appointed  by  his 
commanding  officer,  or  goes  from  the  same,  without  leave  from 
his  commanding  officer,  before  he  is  dismissed  or  relieved,  shall 
be  punished  as  a  court-martial  may  direct. 

ART.  34.  Any  soldier  who  is  found  one  mile  from  camp,  with- 
out leave  in  writing  from  his  commanding  officer,  shall  be  punished 
as  a  court-martial  may  direct. 

ART.  35.  Any  soldier  who  fails  to  retire  to  his  quarters  or  tent 
at  the  beating  of  retreat,  shall  be  punished  according  to  the  nature 
of  his  offense. 

ART.  36.  No  soldier  belonging  to  any  regiment,  troop,  battery^ 
or  company  shall  hire  another  to  do  his  duty  for  him,  or  be  excused 
from  duty,  except  in  cases  of  sickness,  disability,  or  leave  of  absence. 
Every  such  soldier  found  guilty  of  hiring  his  duty,  and  the  person  so 
hired  to  do  another's  duty,  shall  be  punished  as  a  court-martial  may 
direct. 

1  The  "regimental  court-martial,"  under  the  30th  A.  W.,  can  not 
be  used  as  a  substitute  for  a  general  court-martial  or  court  of  inquiry, 
for  it  can  not  try  an  officer  nor  make  an  investigation  for  the  purpose 
of  determining  whether  he  shall  be  brought  to  trial.  When,  if  the 
soldier's  complaint  should  be  sustained,  the  only  redress  would  be 
a  reprimand  to  the  officer,  the  matter  would  not  be  within  the  juris- 
diction of  this  court.  It  can  only  investigate  such  matters -as  are 
susceptible  to  redress  by  the  doing  of  justice  to  the  complainant; 
that  is,  when  in  some  way  he  can  be  set  right  by  putting  a  stop  to  the 
wrongful  condition  which  the  officer  has  caused  to  exist.  Erroneous 
stoppages  of  pay,  irregularity  of  detail,  the  apparent  requirement 
of  more  labor  than  from  any  other  soldiers,  and  the  like,  might  in  this 
way  be  investigated  and  the  wrongful  condition  put  an  end  to.  The 
court  will  in  such  cases  record  the  evidence  and  its  conclusions  of  fact, 
and  recommend  the  action  to  be  taken.  The  members  of  the  court 
(and  the  judge-advocate)  will  be  sworn  faithfully  to  perform  their 
duties  as  members  (and  judge-advocate)  of  the  court,  and  the  proceed- 
ings will  be  recorded,  as  nearly  as  practicable,  in  the  same  manner  as 
the  proceedings  of  ordinary  courts-martial. 


APPENDIX  A  465 

ART.  37.  Every  non-commissioned  officer  who  connives  at  such 
hiring  of  duty  shall  be  reduced.  Every  officer  who  knows  and 
allows  such  practices  shall  be  punished  as  a  court-martial  may 
direct. 

ART.  38.  Any  officer  who  is  found  drunk  on  his  guard,  party, 
or  other  duty,  shall  be  dismissed  from  the  service.  Any  soldier 
who  so  offends  shall  suffer  such  punishment  as  a  court-martial 
may  direct.  No  court-martial  shall  sentence  any  soldier  to  be 
branded,  marked,  or  tattooed. 

ART.  39.  Any  sentinel  who  is  found  sleeping  upon  his  post,  or 
who  leaves  it  before  he  is  regularly  relieved,  shall  suffer  death,  or 
such  other  punishment  as  a  court-martial  may  direct. 

ART.  40.  Any  officer  or  soldier  who  quits  his  guard,  platoon,  or 
division,  without  leave  from  his  superior  officer,  except  in  a  case 
of  urgent  necessity,  shall  be  punished  as  a  court-martial  may  direct. 

ART.  41.  Any  officer  who,  by  any  means  whatsoever,  occasions 
false  alarms  in  camp,  garrison,  or  quarters,  shall  suffer  death,  or 
such  other  punishment  as  a  court-martial  may  direct. 

ART.  42.  Any  officer  or  soldier  who  misbehaves  himself  before 
the  enemy,  runs  away,  or  shamefully  abandons  any  fort,  post,  or 
guard,  which  he  is  commanded  to  defend,  or  speaks  words  inducing 
others  to  do  the  like,  or  casts  away  his  arms  or  ammunition,  or 
quits  his  post  or  colors  to  plunder  or  pillage,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

ART.  43.  If  any  commander  of  any  garrison,  fortress,  or  post  is 
compelled,  by  the  officers  and  soldiers  under  his  command,  to 
give  up  to  the  enemy  or  to  abandon  it,  the  officers  or  soldiers  so 
offending  shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

ART.  44.  Any  person  belonging  to  the  armies  of  the  United  States 
who  makes  known  the  watchword  to  any  person  not  entitled  to 
receive  it,  according  to  the  rules  and  discipline  of  war,  or  presumes 
to  give  a  parole  or  watchword  different  from  that  which  he  received, 
shall  suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

ART.  45.  Whosoever  relieves  the  enemy  with  money,  victuals,  or 
ammunition,  or  knowingly  harbors  or  protects  an  enemy,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial  may 
direct 

ART.  46.  Whosoever  holds  correspondence  with,  or  gives  intelli- 
gence to,  the  enemy,,  either  directly  or  indirectly,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct 

ART  47.  Any  officer  or  soldier  who,  having  received  pay,  or 
having  been  duly  enlisted  in  the  service  of  the  United  States,  deserts 


466  MILITARY  LAW 

the  same,  shall,  in  time  of  war,  suffer  death,  or  such  other  punish- 
ment as  a  court-martial  may  direct;  and  in  time  of  peace,  any 
punishment,  excepting  death,  which  a  court-martial  may  direct. 

ART.  48.  Every  soldier  who  deserts  the  service  of  the  United 
States  shall  be  liable  to  serve  for  such  period  as  shall,  with  the 
time  he  may  have  served  previous  to  his  desertion,  amount  to 
the  full  term  of  his  enlistment;  and  such  soldier  shall  be  tried  by 
a  court-martial  and  punished,  although  the  term  of  his  enlistment 
may  have  elapsed  previous  to  his  being  apprehended  and  tried. 

ART.  49.  Any  officer  who,  having  tendered  his  resignation, 
quits  his  post  or  proper  duties,  without  leave  and  with  intent  to 
remain  permanently  absent  therefrom,  prior  to  due  notice  of  the 
acceptance  of  the  same,  shall  be  deemed  and  punished  as  a  deserter. 

ART.  50.  No  non-commissioned  officer  or  soldier  shall  enlist 
himself  in  any  other  regiment,  troop,  or  company,  without  a 
regular  discharge  from  the  regiment,  troop,  or  company  in  which 
he  last  served,  on  a  penalty  of  being  reputed  a  deserter,  and 
suffering  accordingly.  And  in  case  any  officer  shall  knowingly 
receive  and  entertain  such  non-commissioned  officer  or  soldier,  or 
shall  not,  after  his  being  discovered  to  be  a  deserter,  immediately 
confine  him  and  give  notice  thereof  to  the  corps  in  which  he  last 
served,  the  said  officer  shall,  by  a  court-martial,  be  cashiered. 

ART.  51.  Any  officer  or  soldier  who  advises  or  persuades  any 
other  officer  or  soldier  to  desert  the  service  of  the  United  States, 
shall,  in  time  of  war,  suffer  death,  or  such  other  punishment  as  a 
court-martial  may  direct;  and  in  time  of  peace,  any  punishment, 
excepting  death,  which  a  court-martial  may  direct. 

ART.  52.  It  is  earnestly  recommended  to  all  officers  and  soldiers 
diligently  to  attend  divine  service.  Any  officer  who  behaves 
indecently  or  irreverently  at  any  place  of  divine  worship  shall  be 
brought  before  a  general  court-martial,  there  to  be  publicly  and 
severely  reprimanded  by  the  president  thereof.  Any  soldier  who 
so  offends  shall,  for  his  first  offense,  forfeit  one-sixth  of  a  dollar; 
for  each  further  offense  he  shall  forfeit  a  like  sum,  and  shall  be 
confined  twenty-four  hours.  The  money  so  forfeited  shall  be 
deducted  from  his  next  pay ,r  and  shall  be  applied,  by  the  captain 
or  senior  officer  of  his  troop,  battery,  or  company,  to  the  use  of 
the  sick  soldiers  of  the  same. 

ART  53.  Any  officer  who  uses  any  profane  oath  or  execration 
shall,  for  each  offense,  forfeit  and  pay  one  dollar.  Any  soldier 
who  so  offends  shall  incur  the  penalties  provided  in  the  preceding 
article ;  and  all  moneys  forfeited  for  such  offenses  shall  be  applied 
as  therein  provided. 

ART.  54.  Every  officer  commanding  in  quarters,  garrison,  or  on 


APPENDIX  A  467 

the  march,  shall  keep  good  order,  and,  to  the  utmost  of  his  power, 
redress  all  abuses  or  disorders  which  may  be  committed  by  any 
officer  or  soldier  under  his  command ;  and  if,  upon  complaint  made 
to  him  of  officers  or  soldiers  beating  or  otherwise  ill-treating  any 
person,  disturbing  fairs  or  markets,  or  committing  any  kind  of  riot, 
to  the  disquieting  of  the  citizens  of  the  United  States,  he  refuses 
or  omits  to  see  justice  done  to  the  offender,  and  reparation  made 
to  the  party  injured,  so  far  as  part  of  the  offender's  pay  shall  go 
toward  such  reparation,  he  shall  be  dismissed  from  the  service,  or 
otherwise  punished  as  a  court-martial  may  direct. 

ART.  55.  All  officers  and  soldiers  are  to  behave  themselves  orderly 
in  quarters  and  on  the  march;  and  whoever  commits  any  waste 
or  spoil,  either  in  walks  or  trees,  parks,  warrens,  fish  ponds,  houses, 
gardens,  grain  fields,  inclosures,  or  meadows,  or  maliciously  destroys 
any  property  whatsoever  belonging  to  inhabitants  of  the  United 
States  (unless  by  order  of  a  general  officer  commanding  a  separate 
army  in  the  field),  shall,  besides  such  penalties  as  he  may  be  liable 
to  by  law,  be  punished  as  a  court-martial  may  direct. 

ART.  56.  Any  officer  or  soldier  who  does  violence  to  any  person 
bringing  provisions  or  other  necessaries  to  the  camp,  garrison,  or 
quarters  of  the  forces  of  the  United  States  in  foreign  parts,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial  may 
direct. 

ART.  57.  Whosoever,  belonging  to  the  armies  of  the  United 
States  in  foreign  parts,  or  at  any  place  within  the  United  States 
or  their  Territories  during  rebellion  against  the  supreme  authority 
of  the  United  States,  forces  a  safe-guard,  shall  suffer  death. 

ART.  58.  In  time  of  war,  insurrection,  or  rebellion,  larceny, 
robbery,  burglary,  arson,  mayhem,  manslaughter,  murder,  assault 
and  battery  with  intent  to  kill,  wounding,  by  shooting  or  stabbing, 
with  an  intent  to  commit  murder,  rape,  or  an  assault  and  battery 
with  an  intent  to  commit  rape,  shall  be  punishable  by  the  sentence 
of  a  general  court-martial,  when  committed  by  persons  in  the 
military  service  of  the  United  States,  and  the  punishment  in  any 
such  case  shall  not  be  less  than  the  punishment  provided,  for  the 
like  offense,  by  the  laws  of  the  State,  Territory,  or  District  in  which 
such  offense  may  have  been  committed. 

ART.  59.  When  any  officer  or  soldier  is  accused  of  a  capital 
crime,  or  of  any  offense  against  the  person  or  property  of  any 
citizen  of  any  of  the  United  States,  which  is  punishable  by  the  laws 
of  the  land,  the  commanding  officer,  and  the  officers  of  the  regiment, 
troop,  battery,  company,  or  detachment,  to  which  the  person  so 
accused  belongs,  are  required,  except  in  time  of  war,  upon  applica- 
tion duly  made  by  or  in  behalf  of  the  party  injured,  to  use  their 


468  MILITARY  LAW 

utmost  endeavors  to  deliver  him  over  to  the  civil  magistrate,  and 
to  aid  the  officers  of  justice  in  apprehending  and  securing  him,  in 
order  to  bring  him  to  trial.  If,  upon  such  application,  any  officer 
refuses  or  willfully  neglects,  except  in  time  of  war,  to  deliver  over 
such  accused  person  to  the  civil  magistrates,  or  to  aid  the  officers  of 
j  ustice  in  apprehending  him,  he  shall  be  dismissed  from  the  service.1 

ART.  60.  Any  person  in  the  military  service  of  the  United  States 
who  makes  or  causes  to  be  made  any  claim  against  the  United 
States,  or  any  officer  thereof,  knowing  such  claim  to  be  false  or 
fraudulent;  or 

[2]  Who  presents  or  causes  to  be  presented  to  any  person  in 
the  civil  or  military  service  thereof,  for  approval  or  payment,  any 
claim  against  the  United  States  or  any  officer  thereof,  knowing 
such  claim  to  be  false  or  fraudulent;  or 

[3]  Who  enters  into  any  agreement  or  conspiracy  to  defraud  the 
United  States  by  obtaining,  or  aiding  others  to  obtain,  the  allow- 
ance or  payment  of  any  false  or  fraudulent  claim;  or 

[4]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the 
United  States,  or  against  any  officer  thereof,  makes  or  uses,  or 
procures  or  advises  the  making  or  use  of,  any  writing  or  other  paper, 
knowing  the  same  to  contain  any  false  or  fraudulent  statement ;  or 

[5]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the 
United  States  or  any  officer  thereof,  makes,  or  procures  or  advises 
the  making  of,  any  oath  to  any  fact  or  to  any  writing  or  other 
paper,  knowing  such  oath  to  be  false;  or 

[6]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the 
United  States  or  any  officer  thereof,  forges  or  counterfeits,  or  pro- 
cures or  advises  the  forging  or  counterfeiting  of,  any  signature 
upon  any  writing  or  other  paper,  or  uses,  or  procures  or  advises 
the  use  of,  any  such  signature,  knowing  the  same  to  be  forged 
or  counterfeited;  or 

[7]  Who,  having  charge,  possession,  custody,  or  control  of  any 
money  or  other  property  of  the  United  States,  furnished  or  intended 
for  the  military  service  thereof,  knowingly  delivers,  or  causes  to 
be  delivered,  to  any  person  having  authority  to  receive  the  same, 
any  amount  thereof  less  than  that  for  which  he  receives  a  certificate 
or  receipt;  or 

[8]  Who,  being  authorized  to  make  or  deliver  any  paper  certifying 

1  Municipal  ordinances  and  by-laws  are  part  of  the  "laws  of  the 
land"  within  the  meaning  of  the  phrase  as  used  in  the  59th  A.  W. 
(Opin.  of  Atty.  Gen.  See  cir.  15,  A.  G.  O.,  1894.) 


APPENDIX  A 

the  receipt  of  any  property  of  the  United  States,  furnished  or 
intended  for  the  military  service  thereof,  makes  or  delivers  to  any 
person  such  writing,  without  having  full  knowledge  of  the  truth  of 
the  statements  therein  contained,  and  with  intent  to  defraud 
the  United  States;  or 

[9]  Who  steals,  embezzles,  knowingly  and  willfully  misappro- 
priates, applies  to  his  own  use  or  benefit,  or  wrongfully  or  knowingly 
sells  or  disposes  of  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  money,  or  other  property  of  the 
United  States,  furnished  or  intended  for  the  military  service 
thereof;  or 

[10]  Who  knowingly  purchases,  or  receives  in  pledge  for  any  obli- 
gation or  indebtedness,  from  any  soldier,  officer,  or  other  person 
who  is  a  part  of  or  employed  in  said  forces  or  service,  any  ordnance, 
arms,  equipments,  ammunition,  clothing,  subsistence  stores,  or 
other  property  of  the  United  States,  such  soldier,  officer,  or  other 
person  not  having  lawful  right  to  sell  or  pledge  the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprison- 
ment, or  by  such  other  punishment  as  a  court-martial  may  adjudge, 
or  by  any  or  all  of  said  penalties.1  And  if  any  person,  being  guilty 
of  any  of  the  offenses  aforesaid,  while  in  the  military  service  of  the 
United  States,  receives  his  discharge,  or  is  dismissed  from  the 
service,  he  shall  continue  to  be  liable  to  be  arrested  and  held  for 
trial  and  sentence  by  a  court-martial,  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  received  such  discharge  nor  been 
dismissed. 

ART.  61.  Any  officer  who  is  convicted  of  conduct  unbecoming  an 
officer  and  a  gentleman  shall  be  dismissed  from  the  service. 

ART.  62.  All  crimes  not  capital,  and  all  disorders  and  neglects, 
which  officers  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  good 
order  and  military  discipline,  though  not  mentioned  in  the  foregoing 
Articles  of  War,  are  to  be  taken  cognizance  of  by  a  general,  or  a 
regimental,  garrison,  or  field  officers  2  court-martial,  according  to 
the  nature  and  degree  of  the  offense,  and  punished  at  the  discretion 
of  such  court.8 

1  The  words  in  italics  were  added  by  Act  of  March  2,  1901.     See 
Appendix  C. 

2  The  "field  officers3"'  court  was  abolished  by  Sec.  2  of  the  summary 
court  act  of  June  18,  1898.     See  Appendix  B. 

"SEC.  3.  That  fraudulent  enlistment,  and  the  receipt  of  any  pay 
or  allowance  thereunder,  is  hereby  declared  a  military  offense  and 
made  punishable  by  court-martial,  under  the  62d  Article  of  War." 
(Act  of  July  27,  1892.  See  G.  O.  57,  A.  G.  O.,  1892.)  For  definition 
of  fraudulent  enlistment,  see  ante,  par.  710,  and  for  forms  for  charges 
see  Appendix  E. 


470  MILITARY  LAW 

ART,  63.  All  retainers  to  the  camp,  and  all  persons  serving  with 
the  armies  of  the  United  States  in  the  field,  though  not  enlisted 
soldiers,  are  to  be  subject  to  orders  according  to  the  rules  and 
discipline  of  war. 

ART.  64.  The  officers  and  soldiers  of  any  troops,  whether  militia 
or  others,  mustered  and  in  pay  of  the  United  States,  shall,  at  all 
times  and  in  all  places,  be  governed  by  the  Articles  of  War,  and 
shall  be  subject  to  be  tried  by  courts-martial. 

ART.  65.  Officers  charged  with  crime  shall  be  arrested  and  con- 
fined in  their  barracks,  quarters,  or  tents,  and  deprived  of  their 
swords  by  the  commanding  officer.  And  any  officer  who  leaves  his 
confinement  before  he  is  sat  at  liberty  by  his  commanding  officer 
shall  be  dismissed  from  the  service. 

ART.  66.  Soldiers  charged  with  crimes  shall  be  confined  until 
tried  by  court-martial,  or  released  by  proper  authority. 

ART.  67.  No  provost  marshal,  or  officer  commanding  a  guard, 
shall  refuse  to  receive  or  keep  any  prisoner  committed  to  his  charge 
by  an  officer  belonging  to  the  forces  of  the  United  States ;  provided 
the  officer  committing  shall,  at  the  same  time,  deliver  an  account 
in  writing,  signed  by  himself,  of  the  crime  charged  against  the 
prisoner. 

ART.  68.  Every  officer  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty-four  hours  after  such  commitment,  or  as 
soon  as  he  is  relieved  from  his  guard,  report  in  writing,  to  the 
commanding  officer,  the  name  of  such  prisoner,  the  crime  charged 
against  him,  and  the  name  of  the  officer  committing  him;  and  if 
he  fails  to  make  such  report,  he  shall  be  punished  as  a  court-martial 
may  direct. 

ART,  69.  Any  officer  who  presumes,  without  proper  authority, 
to  release  any  prisoner  committed  to  his  charge,  or  suffers  any 
prisoner  so  committed  to  escape,  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  70.  No  officer  or  soldier  put  in  arrest  shall  be  continued 
in  confinement  more  than  eight  days,  or  until  such  time  as  a  court- 
martial  can  be  assembled. 

ART.  71.  When  an  officer  is  put  in  arrest  for  the  purpose  of  trial, 
except  at  remote  military  posts  or  stations,  the  officer  by  whose 
order  he  is  arrested  shall  see  that  a  copy  of  the  charges  on  which  he 
is  to  be  tried  is  served  upon  him  within  eight  days  after  his  arrest, 
and  that  he  is  brought  to  trial  within  ten  days  thereafter,  unless 
the  necessities  of  the  service  prevent  such  trial ;  and  then  he  shall 
be  brought  to  trial  within  thirty  days  after  the  expiration  of  said 
ten  days.  If  a  copy  of  the  charges  be  not  served,  or  the  arrested 
officer  be  not  brought  to  trial,  as  herein  required  the  arrest  shall 


APPENDIX  A  471 

cease.  But  officers  released  from  arrest,  under  the  provisions  of 
this  article,  may  be  tried,  whenever  the  exigencies  of  the  ser- 
vice shall  permit,  within  twelve  months  after  such  release  from 
arrest. 

ART.  72.  Any  general  officer  commanding  an  army,  a  Territorial 
division  or  a  department,  or  colonel  commanding  a  separate  de- 
partment, may  appoint  general  courts-martial  whenever  neces- 
sary. But  when  any  such  commander  is  the  accuser  or  prosecutor 
of  any  officer  under  his  command  the  court  shall  be  appointed  by 
the  President;  and  its  proceedings  and  sentence  shall  be  sent 
directly  to  the  Secretary  of  War,  by  whom  they  shall  be  laid  before 
the  President  for  his  approval  or  orders  in  the  case.1 

ART.  73.  In  time  of  war  the  commander  of  a  division,  or  of  a 
separate  brigade  of  troops,  shall  be  competent  to  appoint  a  general 
court-martial.  But  when  such  commander  is  the  accuser  or  prose- 
cutor of  any  person  under  his  command,  the  court  shall  be  appointed 
by  the  next  higher  commander. 

ART.  74.  Officers  who  may  appoint  a  court-martial  shall  be  com- 
petent to  appoint  a  judge-advocate  for  the  same. 

ART.  75.  General  courts-martial  may  consist  of  any  number 
of  officers  from  five  to  thirteen,  inclusive;  but  they  shall  not 
consist  of  less  than  thirteen,  when  that  number  can  be  convened 
without  manifest  injury  to  the  service. 

ART.  76.  When  the  requisite  number  of  officers  to  form  a  general 
court-martial  is  not  present  in  any  post  or  detachment,  the  com- 
manding officer  shall,  in  cases  which  require  the  cognizance  of  such 
a  court,  report  to  the  commanding  officer  of  the  department,  who 
shall  thereupon  order  a  court  to  be  assembled  at  the  nearest  post 
or  department  at  which  there  may  be  such  a  requisite  number 
of  officers,  and  shall  order  the  party  accused,  with  necessary 
witnesses,  to  be  transported  to  the  place  where  the  said  court  shall 
be  assembled. 

ART.  77.  Officers  of  the  Regular  Army  shall  not  be  competent 
to  sit  on  courts-martial  to  try  the  officers  or  soldiers  of  other 
forces,  except  as  provided  in  Article  78. 

ART.  78.  Officers  of  the  Marine  Corps,  detached  for  service  with 
the  Army  by  order  of  the  President,  may  be  associated  with  officers 
of  the  Regular  Army  on  courts-martial  for  the  trial  of  offenders 
belonging  to  the  Regular  Army,  or  to  forces  of  the  Marine  Corps 
so  detached;  and  in  such  cases  the  orders  of  the  senior  officer  of 
either  corps,  who  may  be  present  and  duly  authorized,  shall  be 
obeyed. 

ART.  79.  Officers  shall  be  tried  only  by  general  courts-martial; 
1  Act  of  July  5,  1884.    See  G.  O.  73,  A.  G.  O.,  1884. 


472  MILITARY  LAW 

and  no  officer  shall,  when  it  can  be  avoided,  be  tried  by  officers 
inferior  to  him  in  rank.1 

ART.  81.  Every  officer  commanding  a  regiment  or  corps  shall, 
subject  to  the  provisions  of  Article  80,  be  competent  to  appoint, 
for  his  own  regiment  or  corps,  courts-martial,  consisting  of  three 
officers,  to  try  offenses  not  capital. 

ART.  82.  Every  officer  commanding  a  garrison,  fort,  or  other 
place,  where  the  troops  consist  of  different  corps,  shall,  subject 
to  the  provisions  of  Article  80,  be  competent  to  appoint,  for  such 
garrison  or  other  place,  courts-martial,  consisting  of  three  officers, 
to  try  offenses  not  capital. 

ART.  83.  Regimental  and  garrison  courts-martial  and  summary 
courts,  detailed  under  existing  laws  to  try  enlisted  men,  shall  not 
have  power  to  try  capital  cases  or  commissioned  officers,  but 
shall  have  power  to  award  punishment  not  to  exceed  confinement 
at  hard  labor  for  three  months  or  forfeiture  of  three  months'  pay, 
or  both,  and  in  addition  thereto,  in  the  case  of  non-commissioned 
officers,  reduction  to  the  ranks,  and  in  the  case  of  first-class  privates 
reduction  to  second-class  privates :  Provided,  That  a  summary  court 
shall  not  adjudge  confinement  and  forfeiture  in  excess  of  a  period 
of  one  month  unless  the  accused  shall  before  trial  consent  in  writing 
to  trial  by  said  court,  but  in  any  case  of  refusal  to  so  consent 
the  trial  may  be  had  either  by  general,  regimental,  or  garrison  court- 
martial,  or  by  said  summary  court,  but  in  case  of  trial  by  said 
summary  court  without  consent  as  aforesaid  the  court  shall 
not  adjudge  confinement  or  forfeiture  of  pay  for  more  than  one 
month.2 

ART.  84.  The  judge-advocate  shall  administer  to  each  member 
of  the  court,  before  they  proceed  upon  any  trial,  the  following 
oath,  which  shall  also  be  taken  by  all  members  of  regimental  and 
garrison  courts-martial:  "You,  A.  B.,  do  swear  that  you  will  well 
and  truly  try  and  determine,  according  to  evidence,  the  matter 
now  before  you,  between  the  United  States  of  America  and  the 
prisoner  to  be  tried,  and  that  you  will  duly  administer  justice, 
without  partiality,  favor,  or  affection,  according  to  the  provisions 
of  the  rules  and  articles  for  the  government  of  the  armies  of  the 
United  States,  and  if  any  doubt  should  arise,  not' explained  by  said 
articles,  then  according  to  your  conscience,  the  best  of  your  under- 
standing, and  the  custom  of  war  in  like  cases ;  and  you  do  further 
swear  that  you  will  not  divulge  the  sentence  of  the  court  until 
it  shall  be  published  by  the  proper  authority,  except  to  the  judge- 
advocate  ;  neither  will  you  disclose  or  discover  the  vote  or  opinion 

1  Art.  80  repealed  by  Act  of  June  18, 1898,  Sec.  2.     See  Appendix  B. 

2  83d  A.  W.,  as  amended  by  Act  of  March  2, 1901.     See  Appendix  C. 


APPENDIX  A  473 

of  any  particular  member  of  the  court-martial,  unless  required  to 
give  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  due 
course  of  law.  So  help  you  God." 

ART.  85.  When  the  oath  has  been  administered  to  the  members 
of  a  court-martial,  the  president  of  the  court  shall  administer  to 
the  judge-advocate,  or  person  officiating  as  such,  an  oath  in  the 
following  form:  "You,  A.  B.,  do  swear  that  you  will  not  disclose 
or  discover  the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof,  as  a  witness, 
by  a  court  of  justice,  in  due  course  of  law ;  nor  divulge  the  sentence 
of  the  court  to  any  but  the  proper  authority,  until  it  shall  be  duly 
disclosed  by  the  same.  So  help  you  God." 

ART.  86.  A  court-martial  may  punish,  at  discretion,  any  person 
who  uses  any  menacing  words,  signs,  or  gestures,  in  its  presence, 
or  who  disturbs  its  proceedings  by  any  riot  or  disorder. 

ART.  87.  All  members  of  a  court-martial  are  to  behave  with 
decency  and  calmness. 

ART.  88.  Members  of  a  court-martial  may  be  challenged  by 
a  prisoner,  but  only  for  cause  stated  to  the  court.  The  court 
shall  determine  the  relevancy  and  validity  thereof,  and  shall  not 
receive  a  challenge  to  more  than  one  member  at  a  time. 

ART.  89.  When  a  prisoner,  arraigned  before  a  general  court- 
martial,  from  obstinacy  and  deliberate  design,  stands  mute  or 
answers  foreign  to  the  purpose,  the  court  may  proceed  to  trial 
and  judgment  astif  the  prisoner  had  pleaded  not  guilty. 

ART.  90.  The  judge-advocate,  or  some  person  deputed  by  him, 
or  by  the  general  or  officer  commanding  the  Army,  detachment,  or 
garrison,  shall  prosecute  in  the  name  of  the  United  States,  but 
when  the  prisoner  has  made  his  plea,  he  shall  so  far  consider  himself 
counsel  for  the  prisoner  as  to  object  to  any  leading  question  to  any 
of  the  witnesses,  and  to  any  question  to  the  prisoner  the  answer 
to  which  might  tend  to  criminate  himself. 

ART.  91.  The  depositions  of  witnesses  residing  beyond  the  limits 
of  the  State,  Territory,  or  District  in  which  any  military  court 
may  be  ordered  to  sit,  if  taken  on  reasonable  notice  to  the  opposite 
party  and  duly  authenticated,  may  be  read  in  evidence  before 
such  court  in  cases  not  capital.1 

ART.  92.  All  persons  who  give  evidence  before  a  court-martial 
shall  be  examined  on  oath,  or  affirmation,  in  the  following  form : 

1  "SEC.  4.  That  judge-advocates  of  departments  and  of  courts- 
martial,  and  the  trial  officers  of  summary  courts,  are  hereby  authorized 
to  administer  oaths  for  the  purposes  of  the  administration  of  military 
justice,  and  for  other  purposes  of  military  administration."  (Act  of 
July  27,  1892.  See  G.  O.  57,  A.  G.  O.,  1892.) 


474  MILITARY  LAW 

"You  swear  (or  affirm)  that  the  evidence  you  shall  give,  in  the 
case  now  in  hearing,  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.  So  help  you  God." 

ART.  93.  A  court-martial  shall,  for  reasonable  cause,  grant  a 
continuance  to  either  party,  for  such  time,  and  as  often,  as  may 
appear  to  be  just:  Provided,  That  if  the  prisoner  be  in  close  con- 
finement, the  trial  shall  not  be  delayed  for  a  period  longei  than 
sixty  days.1 

ART.  95.  Members  of  a  court-martial,  in  giving  their  votes,  shall 
begin  with  the  youngest  in  commission. 

ART.  96.  No  person  shall  be  sentenced  to  suffer  death,  except 
by  the  concurrence  of  two-thirds  of  the  members  of  a  general 
court-martial,  and  in  the  cases  herein  expressly  mentioned. 

ART.  97.  No  person  in  the  military  service  shall,  under  the 
sentence  of  a  court-martial,  be  punished  by  confinement  in  a  peni- 
tentiary, unless  the  offense  of  which  he  may  be  convicted  would, 
by  some  statute  of  the  United  States,  or  by  some  statute  of  the 
State,  Territory,  or  District  in  which  such  offense  may  be  commit- 
ted, or  by  the  common  law,  as  the  same  exists  in  such  State,  Terri- 
tory, or  District,  subject  such  convict  to  such  punishment. 

ART.  98.  No  person  in  the  military  service  shall  be  punished 
by  flogging,  or  by  branding,  marking,  or  tattooing  on  the  body. 

ART.  99.  No  officer  shall  be  discharged  or  dismissed  from  the 
service,  except  by  order  of  the  President,  or  by  sentence  of  a 
general  court-martial;  and  in  time  of  peace  no  officer  shall  be 
dismissed,  except  in  pursuance  of  the  sentence  of  a  court-martial, 
or  in  mitigation  thereof. 

ART.  100.  When  an  officer  is  dismissed  from  the  service  for 
cowardice  or  fraud,  the  sentence  shall  further  direct  that  the 
crime,  punishment,  name  and  place  of  abode  of  the  delinquent 
shall  be  published  in  the  newspapers  in  and  about  the  camp,  and 
in  the  State  from  which  the  offender  came,  or  where  he  usually 
resides;  and  after  such  publication  it  shall  be  scandalous  for  an 
officer  to  associate  with  him. 

ART.  101.  When  a  court-martial  suspends  an  officer  from  com- 
mand it  may  also  suspend  his  pay  and  emoluments  for  the  same 
time,  according  to  the  nature  of  his  offense. 

ART.  102.  No  person  shall  be  tried  a  second  time  for  the  same 
offense. 

ART.  103.  No  person  shall  be  liable  to  be  tried  and  punished 
by  a  general  court-martial  for  any  offense  which  appears  to  have 
been  committed  more  than  two  years  before  the  issuing  of  the  order 

1  Art.  94  repealed  by  Act  of  March  2, 1901,  Sec.  2.     See  Appendix  C. 


APPENDIX  A  475 

for  such  trial,  unless,  by  reason  of  having  absented  himself,  or 
of  some  other  manifest  impediment,  he  shall  not  have  been  amenable 
to  justice  within  that  period. 

No  person  shall  be  tried  or  punished  by  a  court-martial  for 
desertion  in  time  of  peace  and  not  in  the  face  of  an  enemy,  com- 
mitted more  than  two  years  before  the  arraignment  of  such  per- 
son for  such  offense,  unless  he  shall  meanwhile  have  absented 
himself  from  the  United  States,  in  which  case  the  time  of  his 
absence  shall  be  excluded  in  computing  the  period  of  the  limita- 
tion: Provided,  That  said  limitation  shall  not  begin  until  the 
end  of  the  term  for  which  said  person  was  mustered  into  the 
service.1 

ART.  104.  No  sentence  of  a  cou  -t-martial  shall  be  carried  into 
execution  until  the  same  shall  have  been  approved  by  the  officer 
ordering  the  court,  or  by  the  officer  commanding  for  the  time 
being.2 

ART.  105.  No  sentence  of  a  court-martial,  inflicting  the  pun- 
ishment of  death,  shall  be  carried  into  execution  until  it  shall  have 
been  confirmed  by  the  President ;  except  in  the  cases  of  persons 
convicted,  in  time  of  war,  as  spies,  mutineers,  deserters,  or  mur- 
derers, and  in  the  cases  of  guerrilla  marauders,  convicted  in  time 
of  war,  of  robbery,  burglary,  arson,  rape,  assault  with  intent 
to  commit  rape,  or  of  violation  of  the  laws  and  customs  of  war; 
and  in  such  excepted  cases  the  sentence  of  death  may  be  carried 
into  execution  upon  confirmation  by  the  commanding  general  in 
the  field,  or  the  commander  of  the  department,  as  the  case  may  be. 

ART.  106.  In  time  of  peace  no  sentence  of  a  court-martial, 
directing  the  dismissal  of  an  officer,  shall  be  carried  into  execu- 
tion, until  it  shall  have  been  confirmed  by  the  President. 

ART.  107.  No  sentence  of  a  court-martial  appointed  by  the 
commander  of  a  division  or  of  a  separate  brigade  of  troops,  direct- 
ing the  dismissal  of  an  officer,  shall  be  carried  into  execution  until 
it  shall  have  been  confirmed  by  the  general  commanding  the 
army  in  the  field  to  which  the  division  or  brigade  belongs. 

ART.  108.  No  sentence  of  a  court-martial,  either  in  time  of 
peace  or  in  time  of  war,  respecting  a  general  officer,  shall  be  car- 
ried into  execution  until  it  shall  have  been  confirmed  by  the 
President. 

ART.  109.  All  sentences  of  a  court-martial  may  be  confirmed 
and  carried  into  execution  by  the  officer  ordering  the  court,  or  by 

1  103d  A.  W.,  as  amended  by  Act  of  April  11,  1890.     See  G.  O.  45 
A.  G.  O.,  1890. 

2  104th  A.  W.,  as  amended  by  Act  of  July  27, 1892.     See  G.  O.  57. 
A.  G.  O.,  1892. 


476  MILITARY  LAW 

the  officer  commanding  for  the  time  being,  where  confirmation 
by  the  President,  or  by  the  commanding  general  in  the. field,  or 
commander  of  the  department,  is  not  required  by  these  articles.1 

ART.  111.  Any  officer  who  has  authority  to  carry  into  execution 
the  sentence  of  death,  or  of  dismissal  of  an  officer,  may  suspend 
the  same  until  the  pleasure  of  the  President  shall  be  known ;  and, 
in  such  case,  he  shall  immediately  transmit  to  the  President  a 
copy  of  the  order  of  suspension,  together  with  a  copy  of  the  pro- 
ceedings of  the  court. 

ART.  112.  Every  officer  who  is  authorized  to  order  a  general 
court-martial  shall  have  power  to  pardon  or  mitigate  any  punish- 
ment adjudged  by  it,  except  the  punishment  of  death  or  of  dis- 
missal of  an  officer.  Every  officer  commanding  a  regiment  or 
garrison  in  which  a  regimental  or  garrison  court-martial  may  be 
held  shall  have  power  to  pardon  or  mitigate  any  punishment 
which  such  court  may  adjudge.2 

ART.  113.  Every  judge-advocate,  or  person  acting  as  such,  at 
any  general  court-martial,  shall,  with  as  much  expedition  as  the 
opportunity  of  time  and  distance  of  place  may  admit,  forward 
the  original  proceedings  and  sentence  of  such  court  to  the  Judge- 
Advocate-General  of  the  Army,  in  whose  office  they  shall  be  care- 
fully preserved. 

ART.  114.  Every  party  tried  by  a  general  court-martial  shall, 
upon  demand  thereof  made  by  himself  or  by  any  person  in  his 
behalf,  be  entitled  to  a  copy  of  the  proceedings  and  sentence  of 
such  court. 

ART.  115.  A  court  of  inquiry,  to  examine  into  the  nature  of  any 
transaction  of,  or  accusation  or  imputation  against,  any  officer  or 
soldier,  may  be  ordered  by  the  President  or  by  any  commanding 
officer;  but,  as  courts  of  inquiry  may  be  perverted  to  dishonor- 
able purposes,  and  may  be  employed,  in  the  hands  of  weak  and 
envious  commandants,  as  engines  for  the  destruction  of  military 
merit,  they  shall  never  be  ordered  by  any  commanding  officer, 
except  upon  a  demand  by  the  officer  or  soldier  whose  conduct  is 
to  be  inquired  of. 

ART.  116.  A  court  of  inquiry  shall  consist  of  one  or  more  officers, 
not  exceeding  three,  and  a  recorder,  to  reduce  the  proceedings  and 
evidence  to  writing. 

ART.  117.  The  recorder  of  a  court  of  inquiry  shall  administer 
to  the  members  the  following  oath:  "You  shall  well  and  truly 
examine  and  inquire,  according  to  the  evidence,  into  the  matter 
now  before  you,  without  partiality,  favor,  affection,  prejudice,  or 

1  Art.  110  repealed  by  Act  of  June  18, 1898,  Sec.  2.     See  Appendix  B. 

2  See  par.  950,  A.  P., 


APPENDIX  A  477 

hope  of  reward.  So  help  you  God."  After  which  the  president 
of  the  court  shall  administer  to  the  recorder  the  following  oath: 
"You,  A.  B.,  do  swear  that  you  will,  according  to  your  best  abil- 
ities, accurately  and  impartially  record  the  proceedings  of  the 
court  and  the  evidence  to  be  given  in  the  case  in  hearing.  So  help 
you  God." 

ART.  118.  A  court  of  inquiry,  and  the  recorder  thereof,  shall 
have  the  same  power  to  summon  and  examine  witnesses  as  is 
given  to  courts-martial  and  the  judge-advocates  thereof.  Such 
witnesses  shall  take  the  same  oath  which  is  taken  by  witnesses 
before  courts-martial,  and  the  party  accused  shall  be  permitted 
to  examine  and  cross-examine  them,  so  as  fully  to  investigate  the 
circumstances  in  question. 

ART.  119.  A  court  of  inquiry  shall  not  give  an  opinion  on  the 
merits  of  the  case  inquired  of  unless  specially  ordered  to  do  so. 

ART.  120.  The  proceedings  of  a  court  of  inquiry  must  be  authen- 
ticated by  the  signatures  of  the  recorder  and  the  president  thereof, 
and  delivered  to  the  commanding  officer. 

ART.  121.  The  proceedings  of  a  court  of  inquiry  may  be  admit- 
ted as  evidence  by  a  court-martial,  in  cases  not  capital,  nor  extend- 
ing to  the  dismissal  of  an  officer :  Provided,  That  the  circumstances 
are  such  that  oral  testimony  can  not  be  obtained. 

ART.  122.  If,  upon  marches,  guards,  or  in  quarters,  different 
corps  of  the  Army  happen  to  join  or  do  duty  together,  the  officer 
highest  in  rank  of  the  line  of  the  Army,  Marine  Corps,  or  militia, 
by  commission,  there  on  duty  or  in  quarters,  shall  command  the 
whole,  and  give  orders  for  what  is  needful  to  the  service,  unless 
otherwise  specially  directed  by  the  President,  according  to  the 
nature  of  the  case. 

ART.  123.  In  all  matters  relating  to  the  rank,  duties,  and 
rights  of  officers,  the  same  rules  and  regulations  shall  apply  to 
officers  of  the  Regular  Army  and  to  volunteers  commissioned  in,  or 
mustered  into  said  service,  under  the  laws  of  the  United  States, 
for  a  limited  period. 

ART.  124.  Officers  of  the  militia  of  the  several  States,  when  called 
into  the  service  of  the  United  States,  shall  on  all  detachments, 
courts-martial,  and  other  duty  wherein  they  may  be  employed 
in  conjunction  with  the  regular  or  volunteer  forces  of  the  United 
States,  take  rank  next  after  all  officers  of  the  like  grade  in  said 
regular  or  volunteer  forces,  notwithstanding  the  commissions  of 
such  militia  officers  may  be  older  than  the  commissions  of  the  said 
officers  of  the  regular  or  volunteer  forces  of  the  United  States. 

ART.  125.  In  case  of  the  death  of  any  officer,  the  major  of  his 
regiment,  or  the  officer  doing  the  major's  duty,  or  the  second 


478  MILITARY  LAW 

officer  in  command  at  any  post  or  garrison,  as  the  case  may  be, 
shall  immediately  secure  all  his  effects  then  in  camp  or  quarters, 
and  shall  make,  and  transmit  to  the  office  of  the  Department  of 
War,  an  inventory  thereof. 

ART.  126.  In  case  of  the  death  of  any  soldier,  the  commanding 
officer  of  his  troop,  battery,  or  company  shall  immediately  secure 
all  his  effects  then  in  camp  or  quarters,  and  shall,  in  the  presence 
of  two  other  officers,  make  an  inventory  thereof,  which  he  shall 
transmit  to  the  office  of  the  Department  of  War. 

ART.  127.  Officers  charged  with  the  care  of  the  effects  of  deceased 
officers  or  soldiers  shall  account  for  and  deliver  the  same,  or  the 
proceeds  thereof,  to  the  legal  representatives  of  such  deceased 
officers  or  soldiers.  And  no  officer  so  charged  shall  be  permitted 
to  quit  the  regiment  or  post  until  he  has  deposited  in  the  hands 
of  the  commanding  officer  all  the  effects  of  such  deceased  officers  or 
soldiers  not  so  accounted  for  and  delivered. 

ART.  128.  The  foregoing  articles  shall  be  read  and  published, 
once  in  every  six  months,  to  every  garrison,  regiment,  troop,  or 
company  in  the  service  of  the  United  States,  and  shall  be  duly 
observed  and  obeyed  by  all  officers  and  soldiers  in  said  service. 


OTHER    STATUTORY    PROVISIONS    DEFINING    COURT- 
MARTIAL   OFFENSES 

SEC.  1343,  R.  S.  All  persons  who,  in  time  of  war,  or  of  rebellion 
against  the  supreme  authority  of  the  United  States,  shall  be  found 
lurking  or  acting  as  spies,  in  or  about  any  of  the  fortifications, 
posts,  quarters,  or  encampments  of  any  of  the  armies  of  the  United 
States,  or  elsewhere,  shall  be  triable  by  a  general  court-martial, 
or  by  a  military  commission,  and  shall,  on  conviction  thereof,  suffer 
death. 

SEC.  5306,  R.  S.  Every  officer  of  the  United  States,  civil,  mili- 
tary, or  naval,  and  every  sutler,  soldier,  marine,  or  other  person, 
who  takes,  or  causes  to  be  taken  into  a  State  declared  to  be  in 
insurrection,  or  to  any  other  point  to  be  thence  taken  into  such 
State,  or  who  transports  or  sells,  or  otherwise  disposes  of  therein, 
any  goods,  wares,  or  merchandise  whatsoever,  except  in  pursuance 
of  license  and  authority  of  the  President,  as  provided  in  this  Title 
[see  Sec.  5304],  or  who  makes  any  false  statement  or  representation 
upon  which  license  and  authority  is  granted  for  such  transportation, 
sale,  or  other  disposition,  or  who,  under  any  license  or  authority 
obtained,  willfully  and  knowingly  transports,  sells,  or  otherwise 
disposes  of  any  other  goods,  wares,  or  merchandise  than  such  as 


APPENDIX  A  479 

are  in  good  faith  so  licensed  and  authorized,  or  who  willfully  and 
knowingly  transports,  sells,  or  disposes  of  the  same,  or  any  portion 
thereof,  in  violation  of  the  terms  of  such  license  or  authority,  or 
of  any  rule  or  regulation  prescribed  by  the  Secretary  of  the  Treasury 
concerning  the  same,  or  who  is  guilty  of  any  act  of  embezzlement, 
of  willful  misappropriation  of  public  or  private  money  or  property, 
of  keeping  false  accounts,  or  of  willfully  making  any  false  returns, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  fined  not 
more  than  five  thousand  dollars,  and  imprisoned  in  the  peniten- 
tiary not  more  than  three  years.  Violations  of  this  section  shall 
be  cognizable  before  any  court,  civil  or  military,  competent  to 
try  the  same. 

SEC.  5313,  R.  S.  All  persons  in  the  military  or  naval  service 
of  the  United  States  are  prohibited  from  buying  or  selling,  trading, 
or  in  any  way  dealing  in  captured  or  abandoned  property,  whereby 
they  shall  receive  or  expect  any  profit,  benefit,  or  advantage  to 
themselves,  or  any  other  person,  directly  or  indirectly  connected 
with  them ;  and  it  shall  be  the  duty  of  such  person  whenever  such 
property  comes  into  his  possession  or  custody,  or  within  his  control, 
to  give  notice  thereof  to  some  agent,  appointed  by  virtue  of  this 
Title  [see  Sec.  5305],  and  to  turn  the  same  over  to  such  agent  without 
delay.  Any  officer  of  the  United  States,  civil,  military,  or  naval, 
or  any  sutler,  soldier,  or  marine,  or  other  person  who  shall  violate 
any  provision  of  this  section,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  fined  not  more  than  five  thousand  dollars, 
and  imprisoned  in  the  penitentiary  not  more  than  three  years. 
Violations  of  this  section  shall  be  cognizable  before  any  court, 
civil  or  military,  competent  to  try  the  same. 


APPENDIX    B 
ACT  ESTABLISHING  THE  SUMMARY  COURT 

Be  it  enacted,  etc.,  That  the  Act  entitled  "An  act  to  promote 
the  administration  of  justice  in  the  Army,"  approved  October 
first,  eighteen  hundred  and  ninety,  as  supplemented  and  amended 
by  subsequent  legislation,  be,  and  the  same  is  hereby,  amended 
so  as  to  read  as  follows: 

"That  the  commanding  officer  of  each  garrison,  fort,  or  other 
place,  regiment  or  corps,  detached  battalion,  or  company,  or 
other  detachment  in  the  Army,  shall  have  power  to  appoint  for 
such  place  or  command,  or  in  his  discretion  for  each  battalion 
thereof,  a  summary  court  to  consist  of  one  officer  to  be  designated 
by  him,  before  whom  enlisted  men  l  who  are  to  be  tried  for  offenses, 
such  as  were  prior  to  the  passage  of  the  Act  'to  promote  the  ad- 
ministration of  justice  in  the  Army,'  approved  October  first,  eight- 
een hundred  and  ninety,  cognizable  by  garrison  or  regimental 
courts-martial,  and  offenses  cognizable  by  field  officers  detailed 
to  try  offenders  under  the  provisions  of  the  eightieth  and  one 
hundred  and  tenth  articles  of  war,  shall  be  brought  to  trial  within 
twenty-four  hours  of  the  time  of  the  arrest,  or  as  soon  thereafter  as 
practicable,  except  when  the  accused  is  to  be  tried  by  general 
court-martial;  but  such  summary  court  may  be  appointed  and 
the  officer  designated  by  superior  authority  when  by  him  deemed 
desirable;  and  the  officer  holding  the  summary  court  shall  have 
power  to  administer  oaths  and  to  hear  and  determine  such  cases, 
and  when  satisfied  of  the  guilt  of  the  accused  adjudge  the  punish- 
ment to  be  inflicted,  which  said  punishment  shall  not  exceed  con- 
finement at  hard  labor  for  one  month  and  forfeiture  of  one  month's 
pay,  and,  in  the  case  of  a  non-commissioned  officer,  reduction  to 
the  ranks  in  addition  thereto;  that  there  shall  be  a  summary 
court  record  kept  at  each  military  post  and  in  the  field  at  the 
headquarters  of  the  proper  command,  in  which  shall  be  entered 


1  Retainers  to  the  camp  and  other  classes  of  persons  mentioned 
the  03d  A.  W.  are  not  triable  by  summary  court. 


in 
480 


APPENDIX  B  481 

a  record  of  all  cases  heard  and  determined  and  the  action  had 
thereon;  and  no  sentence  adjudged  by  said  summary  court  shall 
be  executed  until  it  shall  have  been  approved  by  the  officer  ap- 
pointing the  court,  or  by  the  officer  commanding  for  the  time 
being :  Provided,  That  when  but  one  commissioned  officer  is  pres- 
ent with  a  command  he  shall  hear  and  finally  determine  such 
cases :  And  provided  further,  That  no  one  while  holding  the  privi- 
leges of  a  certificate  of  eligibility  to  promotion  shall  be  brought 
before  a  summary  court,  and  that  non-commissioned  officers  shall 
not,  if  they  object  thereto,  be  brought  to  trial  before  summary 
courts  without  the  authority  of  the  officer  competent  to  ordei 
their  trial  by  general  court-martial,  but  shall  in  such  cases  be 
brought  to  trial  before  garrison,  regimental,  or  general  courts- 
martial,  as  the  case  may  be." 

SEC.  2.  That  articles  eighty  and  one  hundred  and  ten  of  the 
Rules  and  Articles  for  the  Government  of  the  Armies  of  the  United 
States  be,  and  the  same  are  hereby,  repealed. 

SEC.  3.  That  the  commanding  officers  authorized  to  approve 
the  sentences  of  summary  courts  and  superior  authority  shall 
have  power  to  remit  or  mitigate  the  same. 

SEC.  4.  That  post  and  other  commanders  shall,  in  time  of  peace, 
on  the  last  day  of  each  month,  make  a  report  to  the  department 
headquarters  of  the  number  of  cases  determined  by  summary 
court  during  the  month,  setting  forth  the  offenses  committed  and 
the  penalties  awarded,  which  report  shall  be  filed  in  the  office  of 
the  judge-advocate  of  the  department,  and  may  be  destroyed 
when  no  longer  of  use. 

SEC.  5.  That  soldiers  sentenced  by  court-martial  to  dishonor- 
able discharge  and  confinement  shall,  until  discharged  from  such 
confinement,  remain  subject  to  the  Articles  of  War  and  other  laws 
relating  to  the  administration  of  military  justice. 

SEC.  6.  That  it  shall  be  lawful  for  any  civil  officer  having  au- 
thority under  the  laws  of  the  United  States,  or  of  any  State,  Terri- 
tory, or  District,  to  arrest  offenders,  to  summarily  arrest  a  de- 
serter from  the  military  service  of  the  United  States  and  deliver 
him  into  the  custody  of  the  military  authority  of  the  General 
Government. 

SEC.  7.  That  this  Act  shall  take  effect  sixty  days  after  its  passage. 

Approved  June  18,  1898, 


APPENDIX    C 

ACT    TO    PREVENT    THE     FAILURE    OF    MILITARY 
JUSTICE 

Be  it  enacted,  etc.,  That  every  person  not  belonging  to  the  Army 
of  the  United  States  who,  being  duly  subpoenaed  to  appear  as  a 
witness  before  a  general  court-martial  of  the  Army,  willfully 
neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness  or 
to  testify  or  produce  documentary  evidence  which  such  person 
may  have  been  legally  subpoenaed  to  produce,  shall  be  deemed 
guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished 
on  information  in  the  district  court  of  the  United  States;  and  it 
shall  be  the  duty  of  the  United  States  district  attorney,  on  the 
certification  of  the  facts  to  him  by  the  general  court-martial,  to 
file  an  information  against  and  prosecute  the  person  so  offend- 
ing, and  the  punishment  of  such  person,  on  conviction,  shall  be  a 
fine  of  not  more  than  five  hundred  dollars  or  imprisonment  not  to 
exceed  six  months,  or  both,  at  the  discretion  of  the  court:  Pro- 
vided, That  this  shall  not  apply  to  persons  residing  beyond  the 
State,  Territory,  or  District  in  which  such  general  court-martial 
is  held,  and  that  the  fees  of  such  witness,  and  his  mileage  at  the 
rates  provided  for  witnesses  in  the  United  States  district  court 
for  said  State,  Territory  or  District  shall  be  duly  paid  or  ten- 
dered said  witness,  such  amounts  to  be  paid  by  the  Pay  Depart- 
ment of  the  Army  out  of  the  appropriation  for  compensation  of 
witnesses:  Provided,  That  no  witness  shall  be  compelled  to  in- 
criminate himself  or  to  answer  any  questions  which  may  tend  to 
incriminate  or  degrade  him. 

SEC.  2.  That  article  ninety-four,  section  thirteen  hundred  and 
forty-two,  of  the  Revised  Statutes  of  the  United  States  be,  and 
the  same  is  hereby,  repealed. 

SEC.  3.  That  section  one  hundred  and  eighty-three  of  the  Re- 
vised Statutes  of  the  United  States  be,  and  the  same  is  hereby, 
amended  so  as  to  read  as  follows : 

482 


APPENDIX  C  483 

"SEC.  183.  Any  officer  or  clerk  of  any  of  the  departments  law- 
fully detailed  to  investigate  frauds  on,  or  attempts  to  defraud, 
the  Government,  or  any  irregularity  or  misconduct  of  any  officer 
or  agent  of  the  United  States,  and  any  officer  of  the  Army  detailed 
to  conduct  an  investigation,  and  the  recorder,  and,  if  there  be 
none,  the  presiding  officer  of  any  military  board  appointed  for 
such  purpose,  shall  have  authority  to  administer  an  oath  to  any 
witness  attending  to  testify  or  depose  in  the  course  of  such  in- 
vestigation." 

SEC.  4.  That  article  eighty-three,  section  thirteen  hundred  and 
forty-two,  of  the  Revised  Statutes  of  the  United  States  be,  and 
the  same  is  hereby,  amended  to  read  as  follows : 

"ARTICLE  83.  Regimental  and  garrison  courts-martial  and  sum- 
mary courts  detailed  under  existing  laws  to  try  enlisted  men  shall 
not  have  power  to  try  capital  cases  or  commissioned  officers,  but 
shall  have  power  to  award  punishment  not  to  exceed  confine- 
ment at  hard  labor  for  three  months  or  forfeiture  of  three  months' 
pay,  or  both,  and  in  addition  thereto,  in  the  case  of  non-commis- 
sioned officers  reduction  to  the  ranks  and  in  the  case  of  first-class 
privates  reduction  to  second-class  privates:  Provided,  That  a 
summary  court  shall  not  adjudge  confinement  and  forfeiture  in 
excess  of  a  period  of  one  month,  unless  the  accused  shall  before 
trial  consent  in  writing  to  trial  by  said  court,  but  in  any  case  of 
refusal  to  so  consent,  the  trial  may  be  had  either  by  general,  regi- 
mental, or  garrison  court-martial,  or  by  said  summary  court,  but 
in  case  of  trial  by  said  summary  court  without  consent  as  afore- 
said, the  court  shall  not  adjudge  confinement  or  forfeiture  of  pay 
for  more  than  one  month." 

SEC.  5.  That  article  sixty,  section  thirteen  hundred  and  forty- 
two,  of  the  Revised  Statutes  of  the  United  States  be,  and  the 
same  is  hereby,  amended  by  inserting  after  the  words  "  shall,  on 
conviction  thereof,  be  punished  by  fine  or  imprisonment,  or  by 
such  other  punishment  as  a  court-martial  may  adjudge,"  the 
words  "or  by  any  or  all  of  said  penalties."  , 

Approved  March  2,  1901. 


APPENDIX  D 

EXECUTIVE  ORDER  ESTABLISHING  LIMITS  OF 
PUNISHMENT 

GENERAL  ORDERS,  )  WAR  DEPARTMENT, 

No,  96.          )  WASHINGTON,  June  19,  1905, 

The  following  Executive  order  is  published  for  the  infor- 
mation and  guidance  of  all  concerned: 

THE  WHITE  HOUSE,  June  12,  1905. 

The  Executive  order,  dated  March  26,  1901,  establishing  limits 
of  punishment  for  enlisted  men  of  the  Army,  under  an  act  of  Con- 
gress approved  September  27,  1890,  and  which  was  published 
in  General  Orders,  No.  42,  Headquarters  of  the  Army,  Adjutant- 
General's  Office,  March  26,  1901,  is  amended  so  as  to  prescribe 
as  follows: 

ARTICLE  I 

In  all  cases  of  desertion  the  sentence  may  include  dishonorable 
discharge  and  forfeiture  of  pay  and  allowances. 

Subject  to  the  modifications  authorized  in  section  3  of  this  article, 
the  limit  of  the  term  of  confinement  (at  hard  labor)  for  desertion 
shall  be  as  follows: 

SECTION  1.  In  case  of  surrender — 

(a)  When  the  deserter  surrenders  himself  after  an  absence  of 
not  more  than  thirty  days,  one  year. 

(6)  When  the  surrender  is  made  after  an  absence  of  more  than 
thirty  days,  eighteen  months. 

SEC.  2.  In  case  of  apprehension — 

(a)  When  at  the  time  of  desertion  the  deserter  shall  not  have 
been  more  than  six  months  in  the  service,  eighteen  months. 

(6)  When  he  shall  have  been  more  than  six  months  in  the  service, 
two  and  one-half  years. 

SEC.  3.  The  foregoing  limitations  are  subject  to  modification 
under  the  following  conditions: 

484 


APPENDIX  D 


485 


(a)  The  punishment  of  a  deserter  may  be  increased  by  one  year 
of  confinement  at  hard  labor  in  consideration  of  each  previous 
conviction  of  desertion. 

(6)  The  punishment  for  desertion  when  joined  in  by  two  01* 
more  soldiers  in  the  execution  of  a  conspiracy,  or  for  desertion  in 
the  presence  of  an  outbreak  of  Indians  or  of  any  unlawful  assem- 
blage which  the  troops  may  be  opposing,  shall  not  exceed  dis- 
honorable discharge,  forfeiture  of  all  pay  and  allowances,  and  con- 
finement at  hard  labor  for  five  years. 

ARTICLE  II. 

Except  as  herein  otherwise  indicated,  punishments  shall  not 
exceed  the  limits  prescribed  in  the  following  table : 


Offenses. 


Limits  of  punishment. 


UNDER  17TH  ARTICLE  or  WAR. 
Selling  horse  or  arms,  or  both.  . 

Selling  accoutrements 


Selling  clothing. 


Losing  or  spoiling  horse  or  arms 
through  neglect. 


Losing  or  spoiling  accoutrements 
or  clothing  through  neglect. 


UNDER  20TH  ARTICLE  OF  WAR. 

Behaving  himself  with  disrespect 

to  his  commanding  officer. 


UNDER  24TH  ARTICLE  OP  WAR. 

Refusal  to  obey  or  using  violence 
to  officer  or  non-commissioned 
officer  while  quelling  quarrels 
or  disorders. 


Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  confine- 
ment at  hard  labor  for  three  years. 

Four  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for  the 
same  period;  for  non-commissioned 
officer,  reduction  in  addition  thereto. 

Three  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per  month 
for  the  same  period;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 

Four  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for  the 
same  period;  for  non-commissioned 
officer,  reduction  in  addition  thereto. 

One  month's  confinement  at  hard  labor 
and  forfeiture  of  $10;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 


Six  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for  the 
same  period;  for  non-commissioned 
officer,  reduction  in  addition  thereto. 


Dishonorable  discharge,  with  forfeiture 
of  all  pay  and  allowances  and  confine- 
ment at  hard  labor  for  two  years. 


MILITARY  LAW 


Offenses. 


Limits  of  punishment. 


UNDER  32o  ARTICLE  OF  WAR. 
Absence  without  leave  1 — 
One  hour  or  less 


For  more  than  one  to  six 
hours,  inclusive. 

For  more  than  six  to  twelve 
hours,  inclusive. 

For  more  than  twelve  to 
twenty-four  hours,  inclu- 
sive. 

For  more  than  twenty- four 
to  forty- eight  hours,  inclu- 


For  more  than  two  to  ten 
days,  inclusive. 


For  more  than  ten  to  thirty 
days,  inclusive. 


For    more    than    thirty    to 
ninety  days,  inclusive. 

For  more  than  ninety  days .  . 


UNDER  33o  ARTICLE  OF  WAR. 

Failure  to  repair  at  the  time  fixed, 
to  the  place  appointed,  etc. — 
For  reveille  or  retreat  roll 
call  and  11  p.m.  inspection. 
For  assembly  of  guard  detail. 
For  guard  mounting  (by  mu- 
sician detailed  for  guard ) . 


Forfeiture  of  $1;  corporal,  $2;  sergeant, 
$3;  1st  sergeant  or  non-commissioned 
officer  of  higher  grade,  $4. 

Forfeiture  of  $2;  corporal,  S3;  sergeant, 
$4;  1st  sergeant  or  non-commissioned 
officer  of  higher  grade,  $5. 

Forfeiture  of  $3;  corporal,  $4;  sergeant, 
$6;  1st  sergeant  or  non-commissioned 
officer  of  higher  grade,  $7. 

Forfeiture  of  $5;  corporal,  $6;  sergeant, 
$7;  1st  sergeant  or  non-commissioned 
officer  of  higher  grade,  $10. 

Forfeiture  of  $5  and  five  days'  confine- 
ment at  hard  labor.  For  corporal, 
forfeiture  of  $8;  sergeant,  $10;  1st 
sergeant  or  non-commissioned  officer 
of  higher  grade,  $12;  or,  for  all  non- 
commissioned officers,  reduction. 

Forfeiture  of  $10  and  ten  days'  confine- 
ment at  hard  labor;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 

Forfeiture  of  $30  and  one  month's  con- 
finement at  hard  labor;  for  non-com- 
missioned officer,  reduction  in  addi- 
tion thereto. 

Dishonorable  discharge  and  forfeiture 
of  all  pay  and  allowances,  and  three 
months'  confinement  at  hard  labor. 

Dishonorable  discharge  and  forfeiture 
of  all  pay  and  allowances  and  nine 
months'  confinement  at  hard  labor. 


Forfeiture   of   $1;     corporal,    $2;     ser- 
geant, $3-    1st  sergeant,  $4. 

[Forfeiture  of  $5;    corporal,  $8;    ser- 
geant, $10. 


1  Upon  trial  for  desertion  and  conviction  of  absence  without  leave  only,  the 
court  may,  in  addition  to  the  limit  prescribed  for  such  absence,  award  a  stoppage 
of  the  amount  paid  as  reward  for  the  apprehension  and  delivery  of  the  accused  to 
the  military  authorities. 


APPENDIX  D 


487 


Offenses. 


Limits  of  punishment. 


UNDER  33o  ARTICLE  OF  WAR — 
Continued. 

For  guard  mounting  (by  mu- 
sician not  detailed  for 
guard ) 

For  assembly  of  fatigue  de- 
tail  

For  parade 

For  inspection  and  muster, 
weekly  or  monthly  inspec- 
tion  

For  target  practice 

For   drill 

For  stable  duty 

For  athletic  exercises 

For  post  school 

UNDER  38TH  ARTICLE  OF  WAR. 

Found  drunk — 

On  guard 


On  duty  as  head  cook 

On  extra  or  special  duty.  .  . 

At  formation  of  company  for 
drill  or  on  drill 

At  target  practice 

At  formation  of  company  for 
dress  parade  or  on  dress 
parade 

At  reveille  or  retreat  roll  call. 

At  inspection  and  muster, 
weekly  or  monthly  inspec- 
tion  

At  inspection  of  company 
guard  detail  or  at  guard 
mounting 

At  stable  duty 

On  fatigue 

UNDER  40TH  ARTICLE  OF  WAR. 
Quitting  guard 


!  Forfeiture  of  $2; 
j      geant,  $5. 


corporal,  $3;    ser- 


Six  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for  the 
same  period;  for  non-commissioned 
officer,  reduction  in  addition  thereto. 

Forfeiture  of  $20. 

1 


Forfeiture  of  $12;  for  non-commis- 
sioned officer,  reduction  and  for- 
feiture of  $20. 


Six  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for 
the  same  period;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 


488 


MILITARY  LAW 


Offenses. 


Limits  of  punishment. 


UNDER  51sT  ARTICLE  OF  WAR. 
Persuading  soldiers  to  desert 

UNDER  COra  ARTICLE  OP  WAR. 

UNDER  62o  ARTICLE  OF  WAR 
Manslaughter.  .  . 


Assault  with  intent  to  kill. . 


Burglary. 
Forgery. 
Perjury.  . 


False  swearing. 


Robbery. 


Larceny    or    embezzlement     of 
property  1— 

Of  the  value  of  more  than 
$100. 

Of  the  value  of  $100  or  less 
and  more  than  $50. 

Of  the  value  of  $50  or  less 
and  more  than  $20. 

Of  the  value  of  $20  or  less .  . 


Fraudulent  enlistment,  procured 
by  false  representation  or  con- 
cealment of  a  fact  in  regard  to 
a  prior  enlistment  or  discharge, 
or  in  regard  to  conviction  of  a 
civil  or  military  crime. 


Dishonorable  discharge,  forfeiture  of  al) 

pay  and  allowances,  and  one  year's 

confinement  at  hard  labor. 
Dishonorable    discharge,    forfeiture    of 

all  pay  and  allowances,  and  four  years' 

confinement  at  hard  labor. 

Dishonorable    discharge,    forfeiture    of 

all  pay  and  allowances,  and  ten  years' 

confinement  at  hard  labor. 
Dishonorable    discharge,    forfeiture    of 

all  pay  and  allowances,  and  ten  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  seven  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  four  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  four  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  two  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  seven  years' 

confinement  at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  four  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  three  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  two  years' 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  one  year's 

confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  confinement 

at  hard  labor  for  one  year. 


1  In  specifications  to  charges  of  larceny  or  embezzlement  the  value  of  the  prop- 
erty shall  be  stated. 


APPENDIX  D 


489 


Offenses. 


Limits  of  punishment. 


UNDER  62o  ARTICLE  OF  WAR— 

Continued. 

Fraudulent  enlistment,  other 
cases  of. 

Disobedience  of  orders,  involv- 
ing willful  defiance  of  the  au- 
thority of  a  non-commissioned 
officer  in  the  execution  of  his 
office. 

Using  threatening  or  insulting 
language  or  behaving  in  an  in- 
subordinate manner  to  a  non- 
commissioned officer  while  in 
the  execution  of  his  office. 

Absence  from  fatigue  duty 

Absence  from  extra  or  special 
duty. 

Absence  from  duty  as  company, 
general  mess,  or  hospital  head 
cook. 

Introducing  liquor  into  post, 
camp,  or  quarters  in  violation 
of  standing  orders 

Drunkenness  at  post  or  in  quar- 
ters. 

Drunkenness  and  disorderly  con- 
duct, causing  the  offender's  ar- 
rest and  conviction  by  civil  au- 
thorit;es  at  a  place  within  ten 
miles  of  his  station. 

Noisy  or  disorderly  conduct  in 
quarters. 

Drunk  and  disorderly  in  post  or 
quarters. 

Abuse  by  non-commissioned  offi- 
cer of  his  authority  over  an  in- 
ferior. 

Non-commissioned  officer  encour- 
aging gambling. 

Non-commissioned  officer  making 
false  report. 

Sentinel  allowing  a  prisoner  un- 
der his  charge  to  escape  through 
neglect. 

Sentinel  willfully  suffering  pris- 
oner under  his  charge  to  escape. 


Dishonorable  discharge,  forfeiture  of  all 
pay  and  allowances,  and  confinement 
at  hard  labor  for  six  months. 

Six  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for 
the  same  period;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 

Two  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for 
the  same  period;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto 

Forfeiture  of  $4;  corporal,  $5;  sergeant, 
$6. 

Forfeiture  of  $4;  corporal,  $5;  sergeant, 
$6. 

Forfeiture  of  $10. 


Forfeiture  of  $3;  for  non-commissioned 
officer,  reduction  and  forfeiture  of  $5. 

Forfeiture  of  $3;  for  non-commissioned 
officer,  reduction  and  forfeiture  of  $5. 

Forfeiture  of  $10  and  seven  days'  con- 
finement at  hard  labor;  for  non-com- 
missioned officer,  reduction  and  for- 
feiture of  $12. 

Forfeiture  of  $4;  corporal,  $7;  sergeant, 

$10. 
Forfeiture  of  $7;    for  non-commissioner! 

officer,  reduction  and  forfeiture  of  $10. 
Reduction,   three  months'  confinement 

at  hard  labor,  and  forfeiture  of  $10  per 

month  for  the  same  period. 
Reduction  and  forfeiture  of  $5. 

Reduction,    forfeiture   of   $8,    and   ten 

days'  confinement  at  hard  labor. 
Six  months'  confinement  at  hard  labor 

and  forfeiture  of  $10  per  month  for 

the  same  period. 
Dishonorable  discharge,  forfeiture  of  all 

pay  and  allowances,  and  one  year's 

confinement  at  hard  labor. 


490 


MILITARY  LAW 


Offenses. 


Limits  of  punishment. 


UNDER  62o  ARTICLE  OF  WAR — 

Continued. 

Sentinel  allowing  a  prisoner  un- 
der his  charge  to  obtain  liquor. 

Sentinel    or    member    of    guard 
drinking  liquor  with  prisoners. 

Disrespect  or   affront  to  a  sen- 
tinel. 


Resisting  or  disobeying  sentinel 
in  lawful  execution  of  his  duty. 


Lewd   or   indecent    exposure   of 
person. 

Committing  nuisance  in  or  about 

quarters. 
Breach  of  arrest  in  quarters 


Two  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for 
the  same  period. 

Two  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for 
the  same  period. 

Two  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for 
the  same  period;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 

Six  months'  confinement  at  hard  labor 
and  forfeiture  of  $10  per  month  for  the 
same  period;  for  non-commissioned 
officer,  reduction  in  addition  thereto. 
Three  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period;  for  non- 
commissioned officer,  reduction  in 
J  addition  thereto. 

One  month's  confinement  at  hard  labor 
and  forfeiture  of  $10;  for  non-commis- 
sioned officer,  reduction  in  addition 
thereto. 


ARTICLE  III 

The  introduction  and  use  of  evidence  of  previous  convictions  is 
subject  to  the  following  regulations: 

SECTION  1.  Such  evidence  shall  be  limited,  except  as  provided 
in  section  5  of  this  article,  to  previous  convictions  by  courts- 
martial  of  an  offense  or  offenses  within  one  year  preceding  the 
date  of  commission  of  any  offense  charged  and  during  the  current 
enlistment.  These  convictions  must  be  proved  by  the  records  of 
previous  trials  and  convictions,  or  by  duly  authenticated  copies 
of  such  records,  or  by  duly  authenticated  copies  of  the  orders 
promulgating  such  trials  and  convictions.  Charges  forwarded  to 
the  authority  competent  to  order  a  general  court-martial,  or  sub- 
mitted to  a  summary,  garrison,  or  regimental  court-martial,  must 
be  accompanied  by  the  proper  evidence  of  previous  convictions. 

SEC.  2.  Whenever  a  soldier  is  convicted  of  an  offense  for  which 
a  discretionary  punishment  is  authorized,  the  court  will  receive 
evidence  of  previous  convictions  (see  section  1  of  this  article), 


APPENDIX  D  491 

if  there  be  any.  General,  regimental,  and  garrison  courts-martial 
will,  after  a  finding  of  guilty,  be  opened  for  the  purpose  of  ascer- 
taining whether  there  is  such  evidence  and,  if  so,  of  receiving  it. 
SEC.  3.  Previous  convictions  in  connection  with  inferior  court 
offenses. — When  a  soldier  is  convicted  of  an  offense  the  punish- 
ment for  which  under  Article  II  of  this  order  or  the  custom  of  the 
service  does  not  exceed  three  months'  confinement  at  hard  labor 
and  forfeiture  of  three  months'  pay,  the  punishment  so  authorized 
may,  upon  proof  of  previous  convictions  (see  section  1  of  this 
article),  be  increased  one-half  for  each  of  such  convictions  up  to 
the  limit  of  three  months'  confinement  at  hard  labor  and  forfeiture 
of  three  months'  pay,  and,  for  non-commissioned  officer  or  first- 
class  private,  reduction  in  addition  thereto.  Upon  proof  of  five 
or  more  of  such  convictions,  if  not  less  than  five  of  them  were 
followed  by  sentences,  in  each  case,  of  not  less,  substitutions  con- 
sidered (see  Article  VII),  than  forfeiture  of  $10  or  confinement 
at  hard  labor  for  20  days,  the  limit  of  punishment  shall  be  dis- 
honorable discharge,  forfeiture  of  all  pay  and  allowances,  and 
confinement  at  hard  labor  for  three  months;  but  if  dishonorable 
discharge  be  not  adjudged,  the  limit  shall  be  three  months'  con- 
finement at  hard  labor  and  forfeiture  of  three  months'  pay,  and, 
for  a  non-commissioned  officer  or  first-class  private,  reduction  in 
addition  thereto. 

SEC.  4.  Previous  convictions  in  connection  with  general  court- 
martial  offenses. — When  the  conviction  is  for  an  offense  punish- 
able under  Article  II  of  this  order  or  the  custom  of  the  service 
with  a  greater  punishment  than  three  months'  confinement  at 
hard  labor  and  forfeiture  of  three  months'  pay,  such  punishment 
shall  not  be  increased  by  reason  of  previous  convictions,  except 
as  hereinafter  specified ;  but  evidence  of  those  described  in  section 
1  of  this  article  will  be  submitted  to  the  court  to  aid  it  to  deter- 
mine upon  the  proper  measure  of  punishment  subject  to  the  limit 
already  authorized.  Upon  proof  of  five  or  more  of  such  convic- 
tions, if  not  less  than  five  of  them  were  followed  by  sentences,  in 
each  case,  of  not  less,  substitutions  considered  (see  Article  VII), 
than  forfeiture  of  $10  or  confinement  at  hard  labor  for  20  days, 
the  court  may,  if  the  authorized  limit  does  not  include  dishonor- 
able discharge,  adjudge  dishonorable  discharge  and  forfeiture  of 
all  pay  and  allowances  with  the  authorized  confinement. 

SEC.  5.  On  a  conviction  of  desertion  evidence  of  convictions  of 

previous  desertions  may  also  be  introduced,  irrespective  of  the 

enlistment  or  of  the  period  which  may  have  elapsed  since  such 

conviction  or  convictions. 

SEC.  6.  When  a  non-commissioned  officer  is  convicted  of  an 


492  MILITARY  LAW 

offense  not  punishable  with  reduction,  he  may,  upon  proof  of  one 
previous  conviction  within  the  prescribed  period  (see  section  1  of 
this  article),  be  sentenced  to  reduction  in  addition  to  the  punish- 
ment already  authorized. 

SEC.  7.  First-class  privates  may  be  reduced  to  second-class 
privates  in  all  cases  where  for  like  offenses  on  the  part  of  non- 
commissioned officers  their  reduction  in  grade  is  now  authorized. 

ARTICLE  IV 

When  a  soldier  shall,  on  one  arraignment,  be  convicted  of  two  or 
more  offenses,  none  of  which  is  punishable  under  Article  II  of  this 
order  or  the  custom  of  the  service  with  dishonorable  discharge, 
but  the  aggregate  term  of  confinement  for  which,  as  specified  in 
said  article,  may  exceed  six  months,  dishonorable  discharge  with 
forfeiture  of  pay  and  allowances  may  be  awarded  in  addition  to  the 
authorized  confinement. 

ARTICLE  V 

If,  in  any  case  where  the  limit  of  punishment  is  dishonorable  dis- 
charge, forfeiture  of  all  pay  and  allowances,  and  confinement  at 
hard  labor  for  a  stated  number  of  months,  d:shonorable  discharge 
be  not  adjudged,  the  limit  of  forfeiture  shall  be  all  pay  due  and  to 
become  due  during  the  prescribed  limit  of  confinement. 

ARTICLE  VI 

This  order  prescribes  the  maximum  limit  of  punishment  for  the 
offenses  named,  and  this  limit  is  intended  for  those  cases  in  which 
the  severest  punishment  should  be  awarded.  In  other  cases  the 
punishment  should  be  graded  down  according  to  the  extenuating 
circumstances.  Offenses  not  herein  provided  for  remain  punish- 
able as  authorized  by  the  Articles  of  War  and  the  custom  of  the 
service. 

ARTICLE  VII 

Substitutions  for  punishment  named  in  Article  II  of  this  order 
are  authorized  at  the  discretion  of  the  courts  at  the  following  rates  : 

Two  days'  confinement  at  hard  labor  for  one  dollar  forfeiture, 
or  the  reverse;  one  day's  solitary  confinement  on  bread  and 
water  diet  for  two  days'  confinement  at  hard  labor  or  for  one 
dollar  forfeiture;  provided  that  a  non-commissioned  officer  not 
sentenced  to  reduction  shall  not  be  subject  to  confinement;  and 
provided  that  solitary  confinement  shall  not  exceed  fourteen  days 


APPENDIX  D  493 

at  one  time,  nor  be  repeated  until  fourteen  days  have  elapsed, 
and  shall  not  exceed  eighty-four  days  in  one  year. 

THEODORE  ROOSEVELT. 

This  order  shall  become  operative  in  the  United  States 
and  contiguous  Territories  thirty  days  after  its  date,  and 
elsewhere  within  the  jurisdiction  of  the  United  States 
sixty  days  from  its  date. 

[1025239,  M.  S.  O.] 
BY  ORDER   OF  THE  SECRETARY   OF  WAR: 

ADNA  R.  CHAFFEE, 

Lieutenant-General,  Chief  of  Staff. 
OFFICIAL  : 

F.  C.  AINSWORTH, 

The  Military  Secretary. 


APPENDIX  E 

GENERAL  FORMS 

i.  Forms  for  Charges 

Charge  and  specification  preferred  against  Private  A B , 

Co. , U.  S.  Infantry. 

AUTICLE    17 

(a)  CHARGE:  "Selling  clothing,1  in  violation  of  the  17th  Article 
of  War." 

Specification:  "  In  that  Private  A B ,  Co. ,  -  -U.S. 

Infantry,  did  sell  the  following  articles  of  his  uniform  clothing, 
issued  to  him,  viz.:  One  (1)  forage  cap,  value  $ ;  one  (1)  over- 
coat, made,  value  $ ;  and  one  (1)  blanket,  woolen,  value 

$ ;  total  value  of  articles  sold  $ . 

"This  at ,  on  the of ,  19—." 

Captain,  —    —  Infantry, 

Officer  Preferring  Charge. 
Witnesses: 

1st  Sergeant  E F ,  Co. ,  -    -  Infantry. 

Private  G H ,  Troop ,  -   —  Cavalry. 

or, 

(6)  "  Losing  accouterments,  in  violation  of  the  17th  Article  of 
War."  * 

Specification:  "In  that  Private  A B ,  Co.  -  -  U. 

S.  Infantry,  did,  through  neglect,  lose  the  following  articles  of  his 

accouterments,  issued  to  him,  viz.:  One  (1)  -  — ,  value  $ ; 

and  one  (1) ,  value  $ ;  total  value  of  articles  lost,  $ — 

"This  at,"  etc. 

1  See  ante,  par.  724. 

2  If  a  soldier  is  known  to  have  unlawfully  disposed  of  his  clothing 
or  accouterments  in  a  way  not  mentioned  in  the  17th  Article,  the 
charge  should  be  laid  under  the  62d  Article. 

494 


APPENDIX  E  495 


ARTICLE  20  * 

CHARGE:  "Behaving  with  disrespect  toward  his  commanding 
officer,  in  violation  of  the  20th  Article  of  War." 

Specification:  "  In  that  Private  A B ,  Co.  - — , U. 

S.  Infantry,  did  behave  himself  with  disrespect  toward  his  com- 
manding officer,  Captain  C D , U.  S.  Infantry,  by  (here 

insert  language  or  describe  the  conduct). 

"  This  at ,  on  the of ,  19—." 

ARTICLE  21 2 

v'a)  CHARGE:  "Disobedience  of  orders,2  in  violation  of  the  21st 
Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  having  received  a  lawful  command  from   his  superior 

officer,  2d  Lieut.  C D ,  -  —  U.  S.  Infantry,  to   (insert 

order],  did  willfully  disobey  the  same. 

"  This  at ,  on  the of ,  19—." 

•  or, 

(b)  "Striking  his  superior  officer,  in  violation  of  the  21st  Article 
of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did  strike  his  superior  officer,  2d  Lieut.  C D , 

U.  S.  Infantry,  with  (here  describe  the  assault),  the  said  lieu- 
tenant being  in  the  execution  of  his  office. 

"  This  at ,  on  the of ,  19— ." 

ARTICLE  24s 

* 

CHARGE:  "Disobedience  of  orders,  in  violation  of  the  24th 
Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  being  present  and  taking  part  in  a  (quarrel,  fray,  or 

disorder)  among  enlisted  men  of  ,  and  having  been  duly 

ordered  by  (insert  name  and  rank  of  officer  or  non-commissioned  offi- 

1  See  ante,  par.  727. 

2  A  non-compliance  by  a  soldier  with  an  order  emanating  from  a 
non-commissioned  officer  is  not  an  offense  under  this  article,  but  one 
to  be  charged,  in  general,  under  the  62d.     A  simple  neglect  to  comply 
with  a  standing  order  is  an  offense  under  the  62d  Article,  and  not 
under  the  21st,  which  implies  a  willful  defiance  of  authority.    See 
ante,  par.  728. 

3  See  ante,  par.  731,. 


496  MILITARY  LAW 

cer)  into  confinement  (or  arrest)  did  refuse  to  obey  and  did  disobey 
said  order. 

"This  at ,  on  the of ,  19—." 

ARTICLE  32  1 

CHARGE  :  "  Absence  without  leave,  in  violation  of  the  32d  Article 
of  War." 

Specification:  "  In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did  absent  himself  from  his  company,  without  leave 

from  his  commanding  officer,  from ,  on  the  of  , 

19—,  until ,  on  the of ,  19—. 

"This  at ,  on  the of ,  19—." 

ARTICLE  33  2 

(a)  CHARGE:  "Absence  from  parade,  in  violation  of  the  33d 
Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  not  being  prevented  by  sickness  or  other  necessity, 
did  fail  to  repair,  at  the  fixed  time,  to  the  place  of  parade  appointed 
by  his  commanding  officer. 

"This  at ,  on  the of ,  19—." 

or, 

(6)  "Absence  from  11  p.m.  inspection,  in  violation  of  the  33d 
Article  of  War." 

Specification:  "  In  that  Private  A B ,  Co. ,  -    -  U. 

S.  Infantry,  not  being  prevented  by  sickness  or  other  necessity, 
did  fail  to  repair,  at  the  fixed  time,  to  the  place  appointed  by  his 
commanding  officer  for  11  o'clock  p.  m.  inspection  of  his  company. 

"This  at ,  on  the of ,  19—." 

ARTICLE  38  3% 

(a)  CHARGE:  "Drunkenness  on  duty,  in  violation  of  the  38th 
Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  while  on  duty  on  stable  guard,  was  found  drunk. 

"  This  at ,  on  the of ,  19—." 

or, 

(6)  "  In  that  Private  A B— — ,  Co. , U.  S.  Infantry, 

while  on  duty  at  drill,  was  found  drunk. 

"This  at,"  etc. 

1  See  ante,  par.  739. 

2  See  ante,  par.  740. 

3  See  ante,  par.  745. 


APPENDIX  E  497 


ARTICLE  39  * 

(a)  CHARGE:  "Sleeping  on  post,  in  violation  of  the  39th  Article 
of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  being  on  guard  and  posted  as  a  sentinel,  was  found 
sleeping  on  his  post. 

"  This  at ,  on  the of ,  19—." 

or, 

(b)  "Leaving  post,  in  violation  of  the  39th  Article  of  War." 
Specification:  "In  that  Private  A B ,  Co. ,  —  —  U. 

S.  Infantry,  being  on  guard  and  posted  as  a  sentinel,  did  leave  his 
post  before  he  was  regularly  relieved. 
"This  at,"  etc. 

ARTICLE  40 2 

CHARGE:  "Quitting  guard,  in  violation  of  the  40th  Article  of 
War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  being  on  guard,  did,  without  urgent  necessity,  quit 
his  guard  without  leave  from  his  superior  officer. 

"  This  at ,  on  the of ,  19—." 

ARTICLE  47 3 

(a)  CHARGE:  "Desertion,  in  violation  of  the  47th  Article  of 
War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  a  soldier  in  the  service  of  the  United  States,4  did 

desert  the  same  at ,  on  or  about  the  —  —  of  -  — ,  19 — ,  and 

did  remain  absent  in  desertion  until  he  was  apprehended  (or  until 

he  surrendered  himself),  at  ,  on  or  about  the of , 

19—." 

(//  a  soldier  deserts  and  enlists  in  another  company,  he  should  be 
charged  with  desertion  under  the  47th  Article,  and  also  with  "fraudu- 
lent enlistment,  to  the  prejudice  of  good  order  and  military  discipline," 

1  See  ante,  par.  746. 

2  See  ante,  par.  747. 

3  See  ante,  par.  754. 

4  This  form  is  applicable  either  in  case  a  soldier  has  "  received  pay" 
or  has  been  "duly  enlisted."     In  either  case  the  "statement  of  service  " 
will  enable  the  court  to  determine  as  to  the  statute  of  limitation  and 
proper  punishment.     See  ante,  par.  754. 


498  MILITARY  LAW 

under  the  62ci.1  The  specification  to  the  latter  charge  should  read  as 
follows:) 

(b)  "  In  that  Private  A B ,  Co. , U.  S.  Infantry, 

a  soldier  in  the  service  of  the  United  States,  did,  without  a  dis- 
charge from  said  regiment  of  infantry,  fraudulently  enlist  in  Troop 

, U.  S.  Cavalry,  at ,  on  the of ,  19 — ,  under 

the  name  of ." 

ARTICLE  51 2 

CHARGE:  "Advising  (or  persuading)  a  soldier  to  desert,  in  viola- 
tion of  the  51st  Article  of  War." 

Specification:  "In  that  Private  A B ,  —  U.  S.  In- 
fantry, did  advise  (or  persuade)  Private  A B ,  —  -  U.  S. 

Infantry,  to  desert  the  service  of  the  United  States  (if  desertion 
occurred,  state  the  fact). 

"This  at ,  on  the of ,  19—." 

ARTICLE  58  3 

CHARGE:  "Murder,  in  violation  of  the  58th  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co.  -  — ,  - 

U.  S.  Infantry,  did  in  time  of  (war,  insurrection,  or  rebellion) 
willfully,  unlawfully,  feloniously  and  with  malice  aforethought 

murder  and  kill by  (here  set  forth  the  manner  of  killing) . 

"This  at ,  on  or  about  the of ,  19—." 

ARTICLE  60 4 

(a)  CHARGE:  "Causing  to  be  presented  to  the  United  States 
authorities  for  payment  a  false  and  fraudulent  claim  against  the 
United  States,  knowing  such  claim  to  be  false  and  fraudulent,  in 
violation  of  the  60th  Article  of  War." 

Specification:  "In  that  1st  Lieut.  A B ,  U.  S. 

Infantry,  having  duly  assigned  to and  caused  to  be 

presented  for  payment  to  -  ,  Deputy  Paymaster  General, 

U.  S.  Army,  by ,  his  official  pay  account  and  claim 

against  the  United  States  for  pay  in  full  for  the  month  of ,  19 — , 

amounting  to  the  sum  of ($ ),  and  the  same  having  been 

1  See  50th  A.  W.,  ante,  par.  757.     In  such  cases  it  is  not  necessary 
to  allege  receipt  of  pay  or  allowance,  as  the  soldier  being  already  in 
the   service,   his  enlisting  again   without   a   discharge   is   punishable 
as  fraudulent  enlistment  without  regard  to  the  Act  of  July  27,  1892. 
See  Digest  Opin.  J,  A.  G.,  Sec.  1418. 

2  See  ante ,  par.  758. 

3  See  ante,  par.  765. 

4  See  ante,  par.  767. 


APPENDIX  E  499 

duly  satisfied  and  paid  on  such  presentation,  on  or  about , 

19 — ,  did  subsequently  cause  to  be  presented  for  payment  by 
his  assignee,  -  — ,  to  the  said  -  — ,  Deputy  Pay- 

master General,  another,  and  a  false  and  fraudulent,  official  pay 
account  and  claim  against  the  United  States  for  pay  for  the  same 

month  and  in  the  same  amount,  he,  the  said  Lieut.  A B , 

well  knowing  that  this  subsequent  account  and  claim  was  false 
and  fraudulent. 

"This  at ,  on  or  about  the of ,  19—." 

(6)  CHARGE:  "Larceny,  in  violation  of  the  60th  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co.  ,  

U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry  away  , 

of  the  value  of  $ ,  the  property  of  the  United  States,  furnished 

and  intended  for  the  military  service  thereof. 
"This  at ,  on  the of ,  19—." 

ARTICLE  61 l 

CHARGE:  "Conduct  unbecoming  an  officer  and  a  gentleman, 
in  violation  of  the  61st  Article  of  War." 

Specification  1:  "In  that  1st  Lieut.  A B -, U.  S. 

Infantry,  having,  for  value  received,  assigned  to  his 

official  pay  account  and  claim  for  pay  in  full  against  the  United 

States  for  the  month  of ,  19 — ,  which  said  account  was  made 

and  executed  by  him  in  due  manner  and  form,  did,  nevertheless, 

for  a  valuable  consideration,  assign  to another  and  a 

second  pay  account  and  claim  of  the  same  nature  and  form,  and 

for  the  same  amount  and  period,  he,  the  said  Lieut.  A B , 

well  knowing  at  the  time  he  made  such  assignment  that  the  sec- 
ond account  and  claim  was  false  and  fraudulent. 

"This  at ,  on  or  about  the of ,  19 — ." 

Specification  2:  "In  that  1st  Lieut.  A B ,  U.  S. 

Infantry,  having  made  and  executed  in  due  form  his  certain  pay 

account  as  an  officer  in  the  army  for  the  month  of  ,  19 — , 

and  having  duly  assigned  the  said  account  to ,  thereby 

parting  with  all  individual  title  and  interest  therein,  and  without 
having  redeemed  the  same,  and  while  it  remained  in  full  force 
and  effect,  did  falsely  certify  with  his  official  signature  to  the 
correctness  of  another  official  pay  account  for  pay  for  the  said 

month  of ,  19 — ,  duly  made,  executed,  and  assigned  to 

,  which  said  certificate  was  in  words  as  follows:  '  I  certify  that 

the  amount  charged  in  the  foregoing  account  is  correct  and  just.' 

"This  at ,  on  or  about  the of ,  19—." 

1  See  ante    par.  768. 


500  MILITARY  LAW 


ARTICLE  62  l 

(o)  CHARGE:  "Neglect  of  duty,  to  the  prejudice  of  good  order 
and  military  discipline." 

Specification:  "In  that  Private  A B ,  Co.  -  — ,  - 

U.  S.  Infantry,  being  on  duty  as ,  and  it  being  his  duty  as 

such  to ,  did  fail  and  neglect  to  perform  said  duty. 

"This  at ,  on  the of ,  19—." 

(6)  CHARGE:  "Drunkenness  and  disorderly  conduct,  to  the 
prejudice  of  good  order  and  military  discipline." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  was  drunk  and  disorderly  in . 

"This  at ,  on  the of ,  19—." 

(c)  CHARGE:  "Suffering  a  prisoner  to  escape,  to  the  prejudice 
of  good  order  and  military  discipline." 

Specification:  "In  that   Private  A B ,  Co. ,  - 

U.  S.  Infantry,  while  on  duty  as  a  sentinel,  did,  through  neglect, 

suffer  Private  C D ,  Co. ,  -      -  U.  S.  Infantry,  a 

prisoner  under  his  charge,  to  escape. 

"This  at ,  on  the of  -  — ,  19—." 

or, 

Specification:  "  In  that  Private  A B ,  Co. , U. 

S.  Infantry,  while  on  duty  as  a  sentinel,  did  willfully  suffer  Private 

C D ,  Co. , U.  S.  Infantry,  a  prisoner  under  his 

charge,  to  escape. 

"This  at ,  on  the of ,  19—." 

(d)  CHARGE:  "Conduct  to  the  prejudice  of  good  order  and  mili- 
tary discipline." 

Specification:  "In  that  Private  A B ,  Co.  ,  - 

U.  S.  Infantry,  having  received  a  lawful  order   from  1st  Sergt. 

C D ,   Co.  , U.  S.  Infantry,  the  said  sergeant 

being  in  the  execution  of  his  duty,  to  (insert  order),  did  willfully 
disobey  the  same. 

"This  at ,  on  the  -   -  of ,  19—." 

(//  any  person  not  a  soldier 2  fraudulently  enlist  in  the  United 
States  service,  the  charge  and  specification  should  read:  3) 

1  See  ante,  par.  769. 

2  For  case  of  fraudulent  enlistment  by  a  soldier,  see  Art.  47,  Form 
(6);  and  for  definition  of  "fraudulent  enlistment,"  see  ante,  par,  710. 

3  See  ante,  par.  710,  and  Sec.  3  of  the  Act  of  July  27,  1892,  which 
is  as  follows: 

"SEC.  3.  That  fraudulent  enlistment,  and  the  receipt  of  any  pay  or 
allowance  thereunder,  is  hereby  declared  a  military  offense  and  rracle 
punishable  by  court-martial,  under  the  62d  Article  of  War." 


APPENDIX  E  501 

(e)  CHARGE:  "Fraudulent  enlistment,  in  violation  of  the  62d 
Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did,  at ,  on  the  -    -  of ,  19 — ,  fraudulently 

enlist  as  a  soldier  in  the  service  of  the  United  States,  by  falsely 
representing  that  he  had  never  been  discharged  from  the  United 
States  service  by  sentence  of  a  military  court  and  by  deliberately 
and  willfully  concealing  from  the  recruiting  officer,  -  — ,  the 

fact  of  his  dishonorable  discharge  from ,  on ,  pursuant  to 

sentence  of  court-martial;    and  that  he  has  at  ,  since  said 

enlistment,  received  pay  and  allowances  thereunder." 

or, 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did,  at ,  on  the  —    —  of ,  19 — ,  being  then  a 

minor,  fraudulently  enlist  as  a  soldier  in  the  service  of  the  United 
States  by  falsely  representing  himself  to  be  over  21  years,  to  wit, 

—  years  and  —  —  months  of  age ;  and  that  he  has  at ,  since 

said  enlistment,  received  pay  and  allowances  thereunder." 

(/)  CHARGE:  "Manslaughter,1   to  the  prejudice  of  good  order 
and  military  discipline,  in  violation  of  the  62d  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did  unlawfully,  willfully  and  feloniously  kill  Private 

C D ,  Co. , U.S.  Infantry,  by  (here  insert  manner 

of  killing}. 

11  This  at ,  on  the of ,  19—." 

(g)  CHARGE:  "Assault   (or,  assault  and  battery)2  with  intent 
to  kill,  to  the  prejudice  of  good  order  and  military  discipline." 

Specification:  "In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did  feloniously  assault  Sergeant ,  Co. , 

-  U.  S.  Infantry,  by  shooting  at  him  with  a  pistol  (or,  by 
stabbing  him  with  a  knife,  etc.,  etc.)  with  intent  to  kill. 

"This  at ,  on  the  -  -  of ,  19—." 

(h)  CHARGE:  "Burglary,3  to  the  prejudice  of  good  order  and 
military  discipline." 

Specification:  "  In  that  Private  A B ,  Co. , U. 

S.  Infantry,  did,  in  the  night-time,  break  into  and  enter  the  quarters 
of  1st  Lieut.  C D ,  —  —  U.  S.  Cavalry,  with  intent  to  com- 
mit a  felony,  to  wit:  (here  describe  the  felony). 

"This  at ,  about o'clock  — .m.,  on  the of , 

19—." 

1  See  ante,  par.  769. 

2  If  there  be  any  unlawful  touching  of  the  person  of  another  by 
the  aggressor  himself  or  any  other  substance  put  in  motion  by  him, 
battery  should  be  charged.     See  ante,  par.  769. 

3  See  ante,  par.  769. 


502  MILITARY  LAW 

(i)  CHARGE:  " Larceny,1  to  the  prejudice  of  good  order  and 
military  discipline." 

Specification:  "In  that  Private  A B ,  Co. ,  —   —  U. 

S.  Infantry,  did  feloniously  take,  steal,  and  carry  away  -  — ,  of 

the  value  of  -    -  dollars  ($ ),  the  property  of  Corporal  - 

,  Co. ,  -    -  U.  S.  Infantry. 

"This  at ,  on  the of ,  19—." 

(;)  CHARGE:  "  Embezzlement,1  as  defined  in  section  5488, 
Revised  Statutes  of  the  United  States,  in  violation  of  the  62d 
Article  of  War." 

Specification:  "  In  that  — ,  U.  S.  Army,  being  the  officer 

in  charge  for  the  United  States  of  -  — ,  and,  as  such  officer  in 

charge  of  said ,  being  a  disbursing  officer  of  the  United  States, 

and  having  intrusted  to  him  large  amounts  of  public  money  of 
the  United  States,  did  willfully  and  knowingly  apply  for  a  purpose 
not  authorized  by  law  a  large  sum  of  the  said  moneys  so  intrusted 
to  him,  by  willfully  and  knowingly  causing  the  amount  hereinafter 
named  to  be  paid  out  of  the  said  moneys  which  were  subject  to 

his  order  and  control  as  such  officer  in  charge  of  said  ,  the 

account  on  which  the  same  was  paid  being  false,  the  amount  paid 
not  being  due  or  owing  from  the  United  States  to  the  party  paid, 

or  to  any  one,  and  he,  the  said * ,  well  knowing  this  to  be 

the  case;  the  said  account,  the  amount  paid,  and  the  payment 
being  that  designated  by  the  following  voucher  (and  the  entries 

therein  and  the  indorsements  thereon),  submitted  by  the  said 

with  his   accounts   and  marked  'Appropriation  for .' 

Voucher  No. ,  $ ,  dated ,  the  said  payment  having 

been  caused  to  be  made  on  or  about ,  by  the  said 

drawing  and  delivering  a  check,  as  such  officer  in  charge  of , 

by  which  the  payment  was  ordered  and  directed  to  be  made  out  of 
moneys  of  the  United  States  under  his  control  as  such  officer. 

"  This  at ,  on  or  about  the of ,  19—." 

(fc)  CHARGE:  " Perjury,2  to  the  prejudice  of  good  order  and  mili- 
tary discipline." 

Specification:  "  In  that  Private  A- B ,  Co. ,  -    -  U. 

1  See  ante,  par.  769. 

2  gee  ante,  par.  769.     Wharton  says  (Criminal  Law,  §  1259):    "  Per- 
jury  before    courts-martial  is   by  statute   made   indictable   in  most 
jurisdictions;   but  even  where  a  statute  does  not  apply,  the  weight  of 
authority  is  that  it  is  perjury  at  common  law."     It  is  a  statutory 
crime,  under  Sec.  5392,  R.  S.     So  that  false  swearing  before  a  court- 
martial,  if  it  possesses  the  other  elements  of  perjury,  is  perjury,  and 
can  be  tried  as  such  by  court-martial  under  the  62d  A.  W.     The  rules 
of  evidence  in  regard  to  perjury  will  then  apply.    When  any  of  the 
elements  of  perjury  are  lacking  the  offense  will  properly  be  charged  as 
"false  swearing";   e.g.,  when  the  matter  is  not  material  to  the  issue. 


APPENDIX  E  503 

S.  Infantry,  having  been  duly  sworn,  at  his  own  request,  as  a 

witness  in  his  own  defense  before  a court-martial,  convened 

at ,  by  -  -  order  No. ,  dated ,  19 — ,  for  his  trial, 

did  willfully,  falsely,  and  corruptly  testify  as  follows : 

"  Question  by  judge-advocate: ? 

"  Answer:  -  — . 

"  Which  testimony  was  false  in  that  (specify  in  what  respects), 

and  which  testimony  was  known  by  him,  the  said  A B ,  to 

be  false,  was  material  to  the  issue  then  being  tried,  and  was  given 
with  intent  to  deceive  the  court. 

"  This  at ,  on  the of ,  19—." 

2.  Statement  of  Service  1 

Statement  of  service  of  -  — ,  Company  , Regiment 

.     (Required  by  paragraph  961,  Army  Regulations.) 

FORMER   SERVICE 


Date  of  enlistment. 

Date  of  discharge. 

Character  on  discharge. 

Date  of  present  enlistment  —  — ,  19 — . 

Date  of  confinement  under  present  charges  —  — ,  19 — . 

(Place.)  Commanding  — 

(Date.) 


3.  Surgeon's  Report  on  Alleged  Deserter 2 

FORT  —          — , 

1Q 

SIR:  In  compliance  with  par.  124,  A.  R.,  I  have  the  honor  to 
report   that  I  have   critically  examined  -  — ,   an   alleged 

deserter,  and  find  him  fit  for  service  (or,  unfit  for  service  on  account 
of ). 


To  the  Surgeon. 

Post  Adjutant. 

1  See  ante,  par.  130.     This  form  will  be  printed  on  official  letter 
paper.     When  possible  the  name  of  the  organization  or  organizations 
m  which  the  soldier  formerly  served  should  be  given. 

2  See  ante,  par.  130. 


504  MILITARY  LAW 

4.  Record  of  a  General  Court-martial1 

SEC.  I. — FORM  FOR  RECORD2 
CASE  — . 

Proceedings  3  of  a  general  court-martial  which  convened  at , 

,  pursuant  to  the  following  order: 

(Here  insert  a  literal  copy  of  the  order  appointing  the  court,  and, 
following  it,  copies  of  any  orders  modifying  the  detail.} 4 

HEADQUARTERS  DEPARTMENT  OF , 

in 

,  i»       . 

SPECIAL  ORDERS,  ) 
No.  — .          j 

A  general  court-martial  is  appointed  to  meet  at ,  ,  at 

.m.,  on ,  19 — ,  or  as  soon  thereafter  as  practicable, 

for  the  trial  of  such  persons  as  may  be  properly  brought  before  it. 

DETAIL  FOR   THE    COURT 

Major ,  5th  Cavalry. 

Captain ,  Artillery  Corps. 

Captain ,  assistant  surgeon. 

1st  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry. 

2d  Lieutenant ,  Artillery  Corps. 

2d  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 

(//  less  than  thirteen  members  are  detailed,  the  order  will  state:) 
A  greater  number  of  officers  can  not  be  assembled  without  mani- 
fest injury  to  the  service. 

(In  case  travel  is  necessary,  the  following  sentence  will  be  added:) 
The  journeys  required  in  complying  with  this  order  are  necessary 

for  the  public  service. 

1  See  Record,  ante,  par.  379  et  seq.     The  record  will  be    clear  and 
legible,  and,  if  practicable,  without  erasure  or  interlineation.     Any 
erasure  or  interlineation  made  must  be  authenticated  by  the  initials 
of  the  president  or  of  the  judge-advocate.     In  case  the  record  is  type- 
written a  copyable  ribbon  will  be  used. 

2  The  pages  of  the  record  will  be  numbered  at  the  bottom,  and 
margins  of  1  inch  will  be  left  at  the  top,  bottom,  and  left  side  of  each 


"Every  party  tried  by  a  general  court-martial  shall,  upon  demand 
thereof,  made  by  himself  or  by  any  person  in  his  behalf,  be  entitled 
to  a  copy  of  the  proceedings  and  sentence  of  such  court."  (114th  A. 
W.)  Applications  for  copies  under  this  article  will  be  addressed  to 
the  Judge-Advocate-General.  (Par.  926,  A.  R.) 

4  Words  inclosed  in  parentheses,   (  ),  or  brackets,  [  ],  are  simply 
explanatory,  and  will  not  be  copied  in  the  record. 


APPENDIX  E  505 


By  command  of  Brigadier-General 
(Signed) 


Military  Secretary. 

FORT , 

-  19-. 

The  court  met  pursuant  to  the  foregoing  order  at o'clock 

— .m. 

PRESENT  * 

Major — ,  5th  Cavalry. 

Captain  —         — ,  assistant  surgeon. 

1st  Lieutenant ,  10th  Infantry. 

1st  Lieutenant  -  — ,  5th  Cavalry. 

2d  Lieutenant  —  — ,  Artillery  Corps. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 

ABSENT 

Captain  —  — ,  Artillery  Corps. 

2d  Lieutenant  —  — ,  10th  Infantry. 

(//  the  cause  of  absence  is  known,  it  will  be  recorded;  if  unknown, 
it  will  be  so  stated.)  2 

The  court  then  proceeded  to  the  trial  of  Private  -  — , th 

Company,  Coast  Artillery,  who,  having  been  brought  before  the 

court,  stated  that  he  did  not  desire  counsel ;   (or)  introduced 

as  counsel. 

[REPORTER.]  3 

—  was  duly  sworn  as  reporter.4 

1  In  the  record  of  the  proceedings  of  a  court-martial,  at  its  organi- 
zation for  the  trial  of  a  case,  the  officers  detailed  as  members  and 
judge -advocate  will  be  noted  by  name  as  present  or  absent.     In  the 
record  of  the  proceedings  of  subsequent  sessions  in  the  same  case, 
the  following  form  of  words  will  be  used,  subject  to  such  modifications 
as  the  facts  may  require:  "Present,  all  the  members  of  the  court  and 
the  judge-advocate."     When  the  absence  of  an  officer  who  has  not 
qualified,  or  who  has  been  relieved  or  excused  as  a  member,  has  been 
accounted  for,  no  further  note  will  be  made  of  it. 

2  It  is  the  duty  of  a  judge-advocate  to  ascertain,  if  possible,  the  cause 
of  absence.     If  a  member  is  absent  by  order,  the  number  and  date 
of  order  will  be  given  if  the  order  emanate  from  the  convening  or 
higher  authority;   but  if  absent  by  telegraphic  authority,  a  post  order, 
etc.,  a  copy  of  the  authority  should  be  appended  to  the  record;  if 
absent  sick,  a  surgeon's  certificate  of  sickness  and  inability  to  attend 
will  be  furnished  by  the  absent  member,  and  appended  to  the  record. 

8  To  facilitate  use  of  form,  subheads  ''reporter,"  "challenges,"  etc., 
are  inserted  and  followed  by  marginal  lines.  To  use  form  in  case 
no  reporter  is  employed,  follow  form  to  "reporter,"  and  then  omit  as 
far  as  marginal  line  under  "reporter"  extends.  In  like  manner  omit 
when  necessary  for  other  subheads. 

4  The  reporter  must  be  sworn  in  each  case.  For  form  of  oath,  see 
ante,  par.  162. 


506  MILITARY  LAW 

The  order  convening  the  court  (and  the  order  or  orders  modifying 
the  detail,  if  any]  was  (or  were)  read  to  the  accused,  and  he  was 
asked  if  he  objected  to  being  tried  by  any  member  present  named 
therein;  to  which  he  replied  in  the  negative. 

[CHALLENGES.] 

(or)  that  he  objected  to on  the  following  grounds: 

(Insert  objections.) 

The  challenged  member  stated : 

(Insert  the  statement  of  the  challenged  member,  who  should  always 
be  requested  to  respond  to  the  challenge  and  inform  the  court  upon 
its  merits.  Should  the  accused,  after  this  statement,  desire  to 
put  the  challenged  member  upon  his  voir  dire,  the  record  should 
continue:) 

The  accused  having  requested  that  the  challenged  member 
be  sworn  upon  his  voir  dire,1  -  -  was  duly  sworn  by 

the  judge-advocate,  and  testified  as  follows:2 

The  challenged  member,  the  accused,  (his  counsel,)  (the 
reporter,)  and  judge-advocate  then  withdrew,3  and  the  court 
was  closed,  and  on  being  opened  the  president  announced  in 
their  presence  that  the  objection  of  the  accused  was  not  sus- 
tained4 (or)  that  the  objection  was  sustained. 

then  withdrew. 

The  accused  was  asked  if  he  objected  to  any  other  member 
present;5  to  which  he  replied  in  the  negative,  (or)  that  he 
objected  to on  the  following  grounds: 

(Insert  objection  in  full  and  record  as  before.) 
The  members  of  the  court  and  the  judge-advocate  were  then 
duly  sworn.6 

[INTERPRETER.] 

(//  an  interpreter  is  required,  he  should  now  be  sworn.)  7 

1  For  form  of  oath,  see  ante,  par.  167. 

2  The  form  of  examination  should  be  similar  to  that  given  for  witness 
for  the  defense  (see  post,  p.  509).     The  accused  should   first  ask  his 
question,  and  then  the   judge -advocate   and  court  such  as  they  may 
deem  pertinent. 

3  See  ante,  par.  167. 

4  In  case  of  a  tie  vote,  see  ante,  par.  376. 

6  Only  one  member  at  a  time  can  be  challenged,  and  a  record  of  the 
proceedings  in  each  case  must  be  made. 

6  Whenever  the  same  court-martial  tries  more  than  one  prisoner  on 
separate  and  distinct  charges,  the  court  will  be  sworn  at  the  commence- 
ment of  each  trial  and  separate  proceedings  in  each  case  prepared. 
For  forms  of  oaths, .see  ante,  par.  174. 

7  For  form  of  oath,  see  ante,  par.  165. 


APPENDIX  E  607 

[DELAY.] 

(//  delay  is  desired  for  cause  known,  application  should  now 
be  made  and  the  proceedings  of  the  court  recorded.1  If  no  delay 
is  requested,  the  record  should  continue:) 

The  accused  was  then  arraigned  upon  the  following  charges  and 
specifications: 2 
CHARGE  I:  -           — . 
Specification  1st: . 


Specification  2d: 
CHARGE  II: 


[PLEA  TO  THE  JURISDICTION,  IN  ABATEMENT  OR  IN  BAR.] 

To  which  the  accused  submitted  the  following  special  plea 
to  the  jurisdiction  (or  in  abatement,  or  in  bar  of  trial): 3 
(or) 

To  which  the  accused  pleaded  as  follows: 

To    the    1st   specification,   1st   charge:    "Guilty;"    (or)    "Not 
guilty." 

To    the  2d    specification,    1st   charge:    "Guilty;"    (or)    ''Not 
guilty." 

To  the  1st  charge:  "Guilty;"  (or)  "Not  guilty." 
To  the  1st  specification,  2d  charge:  etc. 

Sergeant  John  Jones,  Co. ,  —    -  Infantry,   a  witness  for  the 

prosecution,  was  duly  sworn,  and  testified  as  follows:] 

• 
DIRECT  EXAMINATION: 

Questions  by  the  judge-advocate:  4 
Q.  Do  you  know  the  accused?     If  so,  state  who  he  is. 
A    I   do;    Private — ,  -  — th   Company,   Coast   Artil- 
lery. 

(The  succeeding  questions  of  the  judge-advocate  and  their  answers 
should  follow  in  order.) 5 

1  See  ante,  par.  176. 

2  The  signature  and  rank  of  the  officer  preferring  the  charge  is  not 
a  part  of  the  charge  and  should  not  be  copied  into  the  record. 

3  If  a  special  plea  is  made,  the  plea,  the  reply  of  the  judge-advocate, 
and  the  action  of  the  court  thereon  will  be  fully  stated.   See  ante,  par. 
177  et  seq.;  post,  p.  510,  note  3. 

4  When  considered  desirable  the  first  question  may  be  as  to  the 
identity  of  the  witness. 

5  The  record  should  set  forth  fully  all  the  testimony  introduced  upon 
the   trial,   the  oral  portion   as  nearly  as  practicable  in  the  precise 
words  of  the  witness.     If  the  court  should  decide  to  expunge  any  part 
it  will  not  be  literally  expunged  or  omitted  from  the  record,  but  will 
not  be  thereafter  considered  as  part  of  the  evidence, 


508  MILITARY  LAW 

CROSS-EXAMINATION  : 
Questions  by  the  accused: 

Q      _    _  9 

A       _    _ 

(//  the  accused  declines  to  cross-examine  the  witness  the  record 
should  state:) 

The  accused  declined  to  cross-examine  the  witness. 

REEXAMINATION  : 
Questions  by  the  judge-advocate: 
Q.  -  -? 


EXAMINATION  BY  THE  COURT: 
Q.  --  ? 


[OBJECTION  TO  QUESTION.]  * 

Question  by  a  member:  --  ? 

To  this  question  the  accused   (or  party  objecting)  objected 
as  follows: 

(Insert  objection.) 
To  which  the  member  replied: 
(Insert  reply.) 

The  accused  (his  counsel,)  (the  reporter,)  and  judge-advocate 
withdrew,  and  the  court  was  closed,  and  on  being  opened  the 
president  announced  in  their  presence  that*  the  objection  was 
sustained. 
(or)  was  not  sustained. 

(In  the  latter  case  the  record  should  continue:) 
The  question  was  then  repeated  by  the  judge-advocate  as  a 
question  of  the  court. 

A.  --  . 

(//  the  court  considers  it  necessary  to  hear  the  testimony  of  the  wit- 
ness read  or  the  witness  desires  to  have  certain  testimony  read  for 
correction  the  record  will  show  the  fact  and  the  corrections,  if  any.)  2 

1  If  a  question,  put  by  a  member,  is  objected  to  by  another  mem- 
ber, the  judge-advocate,  or  the  accused,  and  the  objection  is  sustained, 
it  will  be  recorded  as  a  question  by  a  member,  and  not  answered.     If  the 
objection  is  not  sustained  it  will  be  recorded  as  a  question  by  the  court, 
repeated  by  the  judge-advocate,  and  must  be  answered.     If  a  question 
is  objected  to  by  any  one,  at  any  time  during  the  trial,  the  above 
method  of  recording  the  action  of  the  court  will  be  followed. 

2  Should  a  witness  be  recalled  and  again  placed  on  the  stand,  he 
will  be  reminded  that  he  has  been  sworn  in  the  case  and  is  still  under 
oath. 


APPENDIX  E  509 

(At  the  close  of  the  prosecution  the  record  should  continue:) 
The  judge-advocate  announced  that  the  prosecution  here  rested. 
(//  the  court  adjourns  to  meet  another  day  the  record  should  con- 
tinue:) 

The  court  then,  at  -    -  o'clock  — .m.,  adjourned  to  meet  at 
—  o'clock  — .m.,  on . 


1st  Lieut. 


Judge-  A  dvocate  .  i 

FORT  --  , 

—,19—. 
The  court  met,  pursuant  to  adjournment,  at  -  o'clock  —  .m. 

PRESENT  2 

All  the  members  of  the  court  and  the  judge-advocate.3 

The  accused,  his  counsel,  and  the  reporter  were  also  present. 

(//  the  proceedings  of  the  previous  day  are  required  by  the  court  to 
be  read,  the  fact  will  be  recorded  in  the  following  form:) 

The  proceedings  of  -    -  were  read  4  and  approved. 
(or)  corrected  as  follows: 

(In  latter  case,  enumerate  corrections,  giving  page  and  line  on  which 
they  occur.) 

Corporal  John  Smith,  Co.  --  ,  -    -  Infantry,  a  witness  for  the 
defense,  was  duly  sworn  and  testified  as  follows  : 

DIRECT  EXAMINATION: 

Question  by  the  judge-advocate:5    Do  you  know  the  accused? 
If  so,  state  who  he  is, 


Questions  by  the  accused: 
Q.  -----  ? 

A      __   __ 

(The  examination  should  be  conducted  as  in  case  of  a  witness  for 
the  prosecution,  the  judge-advocate  cross-examining,  and  the  accused, 
if  he  so  desires,  reexamining  the  witness.) 

1  The  judge-advocate  should  sign  each  day's  proceedings  (par.  987  . 
A.  K,.). 

2  See  p.  505  note  1,  ante. 

3  If  any  member  is  absent,  if  not  already  accounted  for,  add  except 
-  -  (giving  cause  of  absence,  if  known). 

4  The  reading  of  previous  proceedings  may  be  dispensed  with,  unless 
for  special  reason  considered  necessary  by  the  court. 

p  Though  this  is  a  witness  for  the  defense,  the  judge-advocate  will 
ask  the  preliminary  question  for  the  purpose  of  determining  his  iden- 
tification of  the  accused.  When  considered  desirable,  the  first  question 
may  be  as  to  the  identity  of  the  witness, 


510  MILITARY  LAW 

(Should  the  accused  wish  to  testify  in  his  own  behalf,  the  record 
will  continue:)  l 

The  accused,  at  his  own  request,  was  duly  sworn  as  a  witness, 
and  testified  as  follows  : 

Questions  by  the  accused: 

Q.  --  ? 


(The  examination  of  the  accused  should  be  conducted  in  the  same 
manner  as  that  of  any  other  witness.) 

(If  the  accused  has  no  other  witness  to  call,  the  record  should  con- 
tinue:) 

The  accused  had  no  further  testimony  to  offer  and  no  state- 
ment to  make. 

(or)  having  no  further  testimony  to  offer,  made  the  following 
verbal  statement  in  his  defense. 

(or)  having  no  further  testimony  to  offer,  submitted  a  written 
statement  in  his  defense,  which  was  read  to  the  court,  and  is  hereto 
appended  and  marked  A.2 
(or)  requested  until  -  o'clock  —  .m.  to  prepare  his  defense. 

(//  the  court  takes  a  recess  during  the  time  asked  for,  the  record 
will  continue:) 

The  court  then  took  a  recess  until  -  o'clock  —  .m.;  at  which 
hour  the  members  of  the  court,  the  judge-advocate,  the  accused, 
his  counsel,  and  the  reporter  resumed  their  seats. 

(Or,  if  the  court  has  other  business  before  it,  the  record  may  con- 
tinue:) 

The  court  then  proceeded  to  other  business,  and  at  --  o'clock 
—  .m.  resumed  the  trial  of  this  case;  at  which  hour,  etc. 

The  accused  submitted  his  defense,  which  was  read  to  the  court, 
and  is  hereto  appended  and  marked  B.3 


1  Should  the  accused  not  wish  to  testify  in  his  own  behalf,  the  fact 
may  not  be  animadverted  upon. 

2  All  documents  and  papers  made  part  of  the  proceedings,  or  copies 
of  them,  will  be  appended  to  the  record,  in  the  order  of  their  intro- 
duction,  after  the  space  left  for  the  remarks  of  the  reviewing  authority, 
and  marked  in  such  a  manner  as  to  afford  easy  reference.     It  is  not 
necessary  to  encumber  a  record  by  spreading  upon  it  documents  or 
other  writings,  or  matter  excluded  by  the  court.     The  record  should 
simply  specify  the  character  of  the  writings  and  the  grounds  upon 
which  they  were  ruled  out. 

3  The  statement  of  the  accused,  or  argument  in  his  defense,  and  all 
pleas  to  the  jurisdiction  in  bar  of  trial  or  in  abatement,  when  in  writing, 
should  be  signed  by  the  accused,  referred  to  in  proceedings  as  having 
been  submitted  by  him,  and  appended  to  the  record,  whether  he  is 
defended  by  counsel  or  not. 


APPENDIX  E 


511 


The  judge-advocate  submitted  the  case  without  remark. 
(or)  replied  as  follows: 1 

(Insert  reply.) 

(or)  submitted  and  read  to  the  court  a  written  reply,  which  is 
hereto  appended  and  marked  C. 

The  accused  (his  counsel,)  (the  reporter,)  and  judge-advocate 
then  withdrew,  and  the  court  was  closed  and  finds  the  accused, 
Private  —  — , th  Company,  Coast  Artillery : 

Of  the  1st  specification,  1st  charge:  " Guilty ;"  (or)  "Not  guilty/' 

Of  the  2d  specification,  1st  charge:    " Guilty,  except  the  words 
/  and  of  the  excepted  words  Not  guilty." 


Of   the  1st  charge:    "Guilty;"  (or)  "Not  guilty;"  (or)  "Not 

guilty,  but  guilty  of,  etc.,  — ." 

Of  the  1st  specification,  2d  charge,  etc. 

[PREVIOUS  CONVICTIONS  WHEN  ACCUSED  is  FOUND  GUILTY.] 

(//  the  accused  is  found  guilty  and  the  punishment  is  discre- 
tionary? the  record  should  continue:) 

The  judge-advocate  and  accused  were  then  recalled  and 
the  court  opened,  and  the  judge-advocate  stated  that  he  had 
no  evidence  of  previous  convictions  to  submit, 
(or)  read  the  evidence  of  -     -  previous  convictions,3  copies 
of  which  are  hereto  appended  and  marked  D,  E,  etc. 

(//  the  accused  has  any  statement  to  make  in  regard  to  his 
previous  convictions,  it  will  be  recorded.) 

The  accused  (his  counsel,)  (the  reporter,)  and  judge-advocate 
then  withdrew,  and  the  court  was  closed,  and  sentences  him, 
Private  —  — , th  Company,  Coast  Artillery, . 

[NO    PREVIOUS   CONVICTIONS,    OR   ACCUSED   ACQUITTED.] 

(//  the  punishment  is  not  discretionary,  or  the  accused  is  ac- 
quitted, the  record,  after  the  findings  are  stated,  should  continue:) 

And  the  court  does  therefore  sentence  him,  etc. 

(or)  does  therefore  acquit  him,   Private  ,  th 

Company,  Coast  Artillery. 

1  The  judge-advocate  is  entitled  by  usage  to  sum  up  the  case  and 
present  an  argument  at  the  conclusion  of  the  trial,  even  though  the 
accused  declines  to  make  argument  or  statement. 

2  See  Appendix  D,  Article  III,  Sec.  2. 

3  See  Previous  Convictions,  ante,  par.  301  et  seq.     When  the  proof 
pioduced  is  the  copy  furnished  to  the  company  or  other  commander, 
in  accordance  with  par.  964,  A.  R.,  it  will  be  returned  to  him  and  a 
copy  of  it  attached  to  the  record  of  the  general,  regimental,  or  garrison 
court  trying  the  case  (par.  970,  A.  R.).     The  copy  should  be  bound 
with  the  record,  as  an  exhibit,  by  means  of  the  margin  provided  for 
the  purpose. 


512  MILITARY  LAW 

The  judge-advocate  was  then  recalled,  and  the  court  at 

— .m.  proceeded  to  other  business. 

(or)  adjourned  until .m.,  the inst. 

(or)  adjourned  to  meet  at  the  call  of  the  president, 
(or,  on  completion  of  the  trial  of  the  last  case  before  the  court}  ad- 
journed sine  die. 


Major , 

President. 
> 

1  st  Lieut. , 

Judge- A  dvocate.1 

(At  least  two  blank  pages  mil  be  left  after  the  adjournment,  and 
before  the  exhibits,  for  the  decision  and  orders  of  the  reviewing  au- 
thority.) 

FORM  OF   BRIEF 

(The  papers  forming  the  complete  record  will  be  fastened  together 
at  the  top,  and  the  record  folded  in  four  folds,  and  briefed  on  the  first 
fold  as  follows:)2 


Private,  Co. 


Trial  by  general  court-martial 

at ; 

Commencing ,  19 — ; 

Ending ,  19—. 

President: 

Major , 


Judge- A  dvocate : 
1st  Lieut. 


SEC.  II. — FORM  FOR  REVISION  OF  RECORD  8 

FORT , 

-,  19-. 

The  court  reconvened  at o'clock  — .m.,  pursuant  to  the 

following  order: 

1  In  case  of  the  death  or  disability  of  the  judge-advocate  or  president 
of  the  court,  see  ante,  par.  381,  and  par.  987,  A.  R. 

2  When  the  record  is  completed,  the  judge-advocate  will  forward  it 
without  delay  to  the  convening  authority  as  an  inclosure  to  the  indorse- 
ment of  the  judge-advocate  returning  the  original  charges  (par.  989, 
A.  R.).     See  also  ante,  par.  412. 

3  See  Revision  of  Record,  ante,  par.  415  et  seq.     The  court  is  usually 


APPENDIX  E  513 


(Insert  copy  of  order.) 

(or)  pursuant  to  the  following  indorsements; 
(Insert  copies  of  all  indorsements.) 


PRESENT 


ABSENT 

(Insert  names  of  absentees,  and  state  cause  of  absence,  if  known.) 

The  judge-advocate  read  to  the  court  the  foregoing  order, 
(or)  the  foregoing  indorsement  of  the  convening  authority.2 

The  judge-advocate  then  withdrew,  and  the  court  was  closed, 
and  revokes  its  former  findings  and  sentence,  and  finds  the  accused, 
etc. 

(or)  revokes  its  former  sentence,  and  sentences  the  accused,  etc. 
(or)  respectfully  adheres  to  its  former  findings  and  sentence, 
(or)  amends  the  record  by,  etc.3 

The  judge-advocate  was  then  recalled,  and  the  court  at 

— .m.,  etc. 


,  Major , 

1st  Lieut. ,  President. 

Judge- Advocate. 

(The  record  of  revision  will  be  appended  to  the  original  proceed- 
ings, following  them  immediately,  before  the  exhibits,  and  the  whole 
indorsed  by  the  president  of  the  court  and  forwarded  to  the  convening 
authority.) 

reconvened  by  indorsement  on  the  original  record,  returning  it  to  the 
president  of  the  court  with  the  directions  of  the  convening  authority. 

1  If  the  findings  and  sentence  are  to  be  considered,  all  the  members 
who  voted  on  them  should,  if  possible,  be  present.     At  least  five 
members  of  the  court,  who  acted  upon  the  trial,  must,  and  the  judge- 
advocate  should,  be  present  at  a  revision;  but  it  is  in  general  neither 
necessary  nor  desirable  that  the  accused  should  be  present. 

2  The  judge -advocate  will  also  read  any  other  indorsements  there 
may  be  connected  with  the  proceedings  in  revision. 

3  See  ante,  par.  417. 


514 


MILITARY  LAW 


5.  Record  of  a  Summary  Court 

SEC.  I. — FORM  FOR  RECORD  l 

No.  of  case,  — . 

Record  of  a  summary  court  at , ,  appointed  by  —    —  Orders 

No.  — ,  Headquarters , ,  19 — . 


.«!2  •£ 

'•£  .S° 

_• 

fl    h  ^S 

O    CQ 

lun 

£ 

O    o3    ® 

bC^ 

ff 

£> 

e 

0    0) 

^              t>N. 

,S  d 

^  Name,  rank, 
£     company, 
g      and  regi- 
**"     ment,  and 
'2        list  of 

of  War  viol 

Specification, 
with  signature 
of  officer 
preferring 
charges. 

c 
1 

;r  of  previous 
i  within  one  ; 
ig  current 
t. 

Sentence, 
with  signature  of 
trial  officer, 
and  consent  to  trial, 
if  given. 

of  commant 
with  date  i 
re.2 

'5b    witnesses. 

_o 

"o 

llf     | 

Iff 

1 

u 

•^ 

|*S-5  £ 

•8  8  a 

03 

§ 

I  hereby  consent  3  to 

1 

g  Witnesses: 

trial  by  summary 
court     on     these 

1 

charges. 

-  Regt.  - 

j 

Private  Co.  —  :  —  —  . 

NOTE. — This  form  may  be  used  to  furnish  copies  ot  the  record,  the  same 
to  be  certified  to  be  "a  true  copy'   by  the  post  commander  or  adjutant. 
(On  back  of  form. ) 

INSTRUCTIONS 

This  form  is  intended  to  answer  the  purposes  of  a  charge  sheet,  which, 
when  completed  by  the  summary  court  and  the  commanding  officer,  will 
become  the  complete  record  of  the  trial.  The  officer  preferring  the  charges 
will  enter  on  this  form  the  name  of  the  accused,  the  list  of  witnesses,  and 
the  charges  as  called  for  by  the  headings,  together  with  his  signature 
thereto;  and,  in  proper  cases,  the  accused  will  be  required  to  sign  the  state- 
ment snowing  whether  or  not  he  consents  to  trial  by  summary  court — the 
necessary  alteration  being  made  in  the  certificate  if  he  does  not  consent. 
The  case  will  then  be  submitted  in  the  usual  way  for  trial.  Each  sheet  is 
intended  for  one  case  only,  and  will  be  given  a  serial  number  in  the  order 

1  Blank  forms  for  summary  court  record  and  for  monthly  report  of 
cases  tried  (for  form  see  No.  6,  post,  p.  515)  will  be  furnished  by  The 
Military  Secretary  of  the  Army.     For  instructions  regarding  evidence 
of  previous  convictions  by  summary  court,  see  ante,  par.  308. 

2  When  commanding  officer  tries  case  no   approval  is  necessary. 
See  ante,  par.  83,  and  par.  965,  A.  R. 

3  In  cases  where  the  maximum  limit  of  punishment  which  may  be 
awarded  is  greater  than  one  month's  forfeiture  and  confinement,  the 
record  must  show  whether  the  accused  has  consented  or  refused  to 
consent  in  writing  to  trial  by  summary  court  as  prescribed  in  par. 
962,  A.  R,     See  ante,  par.  80. 


APPENDIX  E 


515 


of  trial;  and  they  will  be  bound  in  numerical  order  in  books  of  convenient 
size,  each  case  being  added  to  the  book  when  completed  by  pasting  or  other 
method,  the  margin  at  the  left  being  intended  for  this  purpose.  Paper 
binding  will  be  sufficient,  a  good  quality  of  tough  and  heavy  paper  being 
used  therefor. 

DATA  TO  ACCOMPANY  CHARGES 

In  arrest  (or  confinement)  under  present  charges  since  — 
previous  convictions  within  one  year  (in  current  enlistment)  - 

FIRST   INDORSEMENT 

Respectfully  referred  to  the  summary  court  for  trial. 
By  order  of  —  — * 


— .     Dates  of 


-,  19— 


,  Adjutant. 

SEC.  II. — REMARKS  ON  RECORD 

1.  "When  the  only  officer  present  with  a  command  sits  as  a 
summary  court,  no  approval  of  the  sentence  is  required  by  law, 
but  he  should  sign  the  sentence  as  such  officer  and  date  his  signa- 
ture." 1 

2.  The  name  of  the  post  or  other  place  will  not  be  given  under 
the  head  of  "action  of  officer  appointing  court,  with  date  and 
signature,"  as  this  information  appears  at  the  head  of  the  record. 

6.  Monthly  Report  of  Summary  Court  Cases 

Report  of  cases  2  tried  by  summary  court  at , ,  for  the  month 

of ,  19-. 


a 

3  o 

| 

o 

Sentence. 

eg 

a 

ep. 

c  - 

(If  mitigated,   give 

O 

0 

IS  8 

sentence  as  miti- 

Name, 
rank,  com- 

a 

Synopsis 
of  specifica- 

pL 

gated  only.  Signa- 
ture of  trial  officer 

pany,  and 

p* 

tion. 

"8  rf 

d  > 

not  to  be  copied. 

il 

regiment. 

"o 

bb 

Jo 

^     - 

Give  date  of  signa- 

= 

£ 

a 

••0 

g  -J  ^6 

ture  of  officer  ap- 

= 

1 

| 

j* 

i^H 

pointing  court.) 

• 

1  Par.  965,  A.  R. 

2  The  report  of  each  case  where  the  maximum  limit  of  punishment 
which  may  be  awarded  is  greater  than  one  month's  forfeiture  and  con- 
finement must  show  whether  the  accused  has  consented  or  refused 
to  consent  in  writing  to  trial  by  summary  court,  as  prescribed  in  par. 
962,  A.  R. 


516  MILITARY  LAW 

7.  Record  of  a  Garrison  Court-martial l 

SEC.  I. — FORM  FOR  RECORD 
CASE . 

Proceedings  of   a  garrison   court-martial   convened  at   , 

pursuant  to  the  following  order: 

FORT  - —       — , 

,  19-. 

ORDERS, 
No. 

A  garrison  court-martial  will  convene  at  this  post  at o'clock 

a.m.,  on ,  19—,  or  as  soon  thereafter  as  practicable,  for 

the  trial  of  (such  persons  as  have  refused  to  consent  hi  writing  to 
trial  by  summary  court).2 

DETAIL   FOR   THE    COURT 

Captain . 

1st  Lieutenant — . 

2d  Lieutenant  —  — . 

2d  Lieutenant  —          — ,  judge-advocate. 

By  order  of — : 

(Signed) , 

1st  Lieutenant . 


Adjutant. 

FORT  —    , 

— ,  19—. 

The  court  met,  pursuant  to  the  foregoing  order,  at  -   —  o'clock 
— .m. 

PRESENT 

Captain 


1st  Lieutenant . 

2d  Lieutenant . 

2d  Lieutenant  —          — ,  judge-advocate. 

The  court  then  proceeded  to  the  trial  of  Private 


Company  ,  Infantry,  who,  having  refused  to  consent 

1  The  form  for  record  for  a  garrison  court-martial  differs  from  that 
for  a  genera1  court-martial  only  in  respect  to  the  form  of  the  order 
appointing  the  court.     The   orm  here  given  is  that  for  a  case  in  which 
a  plea  of  "  Guilty"  is  entered;  if  the  prisoner  pleads  "Not  guilty"  or 
makes  a  special  plea,  the  form  for  record  of  a  general  court  will  be 
followed. 

2  See  ante,  par.  76. 


APPENDIX  E  517 

in  writing  to  trial  by  summary  court,  was  brought  before  the 
court,  and  having  heard  the  order  convening  it -read,  was  asked 
if  he  had  any  objection  to  being  tried  by  any  member  named  therein ; 
to  which  he  replied  in  the  negative. 

The  members  of  the  court  and  the  judge-advocate  were  then 
duly  sworn,  and  the  accused  was  arraigned  upon  the  following 
charge  and  specification: 

CHARGE  : 1 . 

Specification: . 

To  which  the  prisoner  pleaded: 

To  the  specification,  "Guilty." 

To  the  charge,  "Guilty." 

(In  case  testimony  is  taken,  it  is  not  recorded.2) 

The  judge-advocate  announced  that  the  prosecution  here  rested. 

The  prisoner  stated  that  he  had  no  testimony  to  offer  or  state- 
ment3 to  make. 

The  accused  and  judge-advocate  then  withdrew,  and  the  court 

was  closed  and  finds  the  accused,  Private ,  Company , 

Infantry: 

Of  the  specification,  "Guilty." 

Of  the  charge,  "Guilty." 

The  judge-advocate  and  the  accused  were  then  recalled  and  the 
court  opened;  and  the  judge-advocate  stated  that  he  had  no 
evidence  of  previous  convictions  to  submit. 

(or)  read  the  evidence  of  previous   con.victions,   copies   of 

which  are  hereto  appended  and  marked  A,  B,  etc. 

The  accused  and  judge-advocate  then  withdrew,  and  the  court 

was  closed  and  sentences  him,  Private  -  — ,  Company , 

Infantry,  etc. 

The  judge-advocate  was  then  recalled,  and  the  court  at 

— .m.,  etc. 


Captain 


President. 


2d  Lieut. 


Jvdge- Advocate. 

1  The  signature  of  the  officer  preferring  the  charge  will  not  be  entered 
in  the  record. 

2  Par.  987,  A.  R.     The  record  must  give  the  names  of  witnesses 
examined,  both  for  the  prosecution  and  defense,  and  will  state  the 
fact  as  to  their  having  been  duly  sworn.     If  the  accused  he  sworn  as  a 
witness  the  record  should  show  that  it  was  at  his  own  request. 

3  Statements  and  arguments  will  not  be  reduced  to  writing  in  the 
record. 


518  MILITARY  LAW 

(A  sine  die  adjournment  will  be  added  to  the  last  case  before  the 
court,  and  the  record  of  each  case  folded  and  indorsed  in  the  same 
manner  as  that  for  a  general  court-martial.) 

SEC.  II. — REMARKS  ON  THE  RECORD 

1.  The  decision  and  orders  of  the  post  commander,  properly 
dated  and  over  his  official  signature,  will  follow  immediately  after 
the  sentence,  adjournment,  or  other  final  proceeding  of  the  court 
in  the  case. 

2.  "  The  complete  proceedings  of  a  garrison  or  regimental  court 
will  be  transmitted  without  delay  by  the  post  or  regimental  com- 
mander to  department  headquarters."1 


8.  Record  of  a  Regimental  Court-martial 2 

CASE . 

Proceedings  of  a  regimental  court-martial  convened  at , 

pursuant  to  the  following  order: 

FORT , 

1Q 

3  X» 

ORDERS, 
No. 

A  regimental  court-martial  will  convene  at  this  post  at  - 
o'clock  a.m.,  on ,  19 — ,  or  as  soon  thereafter  as  practica- 
ble, for  the  trial  of  (such  persons  as  have  refused   to  consent  in 
writing  to  trial  by  summary  court).8 

DETAIL    FOR   THE    COURT4 

(Complete  record  as  in  case  of  garrison  court-martial.) 

1  Par.  990,  A.  R. 

2  The  form  of  record  for  a  regimental  court  differs  from  that  for  a 
garrison  or  a  general  court  only  in  respect  to  the  order  convening  the 
court. 

3  See  ante,  par.  78. 

4  See  ante,  par.  77. 


APPENDIX  E  519 


9.  Proceedings  of  a  Retiring  Board  l 

Proceedings  of  an  Army  retiring  board  convened  at ,  by  virtue 

of  the  following  orders: 

SPECIAL  ORDERS,  \  WAR  DEPARTMENT, 

No. .       [  WASHINGTON,  19—. 

EXTRACT 
******** 

10.  Under  instructions  from  the  President,  and  in  accordance 
with  Section  1246,  Revised  Statutes,  an  army  retiring  board  is 

appointed  to  meet  at , ,  from  time  to  time,  at  the  call  of 

the  president  of  the  board,  for  the  examination  of  such  officers  as 
may  be  ordered  before  it. 

DETAIL   FOR    THE    BOARD 

Colonel , Infantry. 

Lieutenant-Colonel  —  — ,  military  secretary. 

Major ,  surgeon. 

Major , Infantry. 

First  Lieutenant ,  assistant  surgeon. 

First  Lieutenant  — • ,  —    -  Infantry,  recorder. 

Such  journeys  as  it  may  be  necessary  for  the  members  and 
recorder  of  the  board  to  make  in  attending  its  sessions  and  return- 
ing to  their  proper  stations  are  necessary  for  the  public  service. 
******** 

BY   ORDER   OF  THE   SECRETARY   OF  WAR: 


Lieutenant-General,  Chief  of  Staff. 
OFFICIAL: 


The  Military  Secretary. 

, ,  19-. 

The  board  met  pursuant  to  the  foregoing  order  at  11  o'clock  a.m. 

PRESENT 

Colonel — , Infantry. 

Lieutenant-Colonel •-  -    — ,  military  secretary. 

Major — ,  surgeon. 

Major  —  — , Infantry. 

1st  Lieutenant ,  assistant  surgeon. 

1  See  ante,  par.  486  et  teq. 


520  MILITARY  LAW 

1st  Lieutenant , Infantry,  recorder. 

Captain , ,  appeared  before  the  board  pursuant 

to  par.  ,  Special  Orders  Ko. ,  War  Department,  dated 

,  19 — ,  and  stated  that  he  did  not  desire  counsel;  (or,  intro- 
duced   as  counsel.) 

The  order  convening  the  board  was  then  read,  and  Captain 

— —  was  asked  if  he  had  any  objection  to  offer  to  any  member 

present;  to  which  he  replied  in  the  negative. 

(or)  that  he  objected  to on  the  following  grounds: 

(Insert  objections.} 

The  challenged  member  stated : 

(Insert  the  statement  of  the  challenged  member,  who  should  be  re- 
quested to  respond  to  the  challenge  and  inform  the  board  upon  its 
merits.  Should  the  officer  before  the  board  for  examination  desire 
to  put  the  challenged  member  on  his  voir  dire,  the  record  should  con- 
tinue:) 

Captain ,  having  requested  that  the  challenged  mem- 
ber be  sworn  *  on  his  voir  dire, was  duly  sworn  by  the 

recorder,  and  testified  as  follows : 

Question  by  Captain : 

******** 

The  board  was  then  closed,  and,  on  being  opened,  its  decision 
was  announced  that  the  objection  was  not  sustained,  (or)  that  the 
objection  was  sustained.  (In  the  latter  case  the  record  should  state 
that  the  challenged  member  then  withdrew.) 

Captain was  then  asked  whether  he  objected  to  any 

other  member;  to  which,  etc.,  as  before.2 

The  members  of  the  board  and  the  recorder3  were  then  duly 
sworn. 

(//  the  officer  desires  to  be  retired,  the  record  will  continue:) 

Captain  -  —  was  then  asked  whether  he  desired  to  be  re- 

tired, and  answered  in  the  affirmative.  He  was  then  duly  sworn 
as  a  witness,  and  testified  as  follows: 

Question  by  the  recorder  (or  by  the  board) : 

Q.  Please  state  the  nature  of  your  disability  and  its  cause,  and 
how  long  you  have  suffered  from  it. 

1  For  form  of  oath,  see  ante,  par.  167. 

2  Five  being,  under  Sec.  1246,  R.  8.,  the  minimum  number  of  members 
of  a  retiring  board,  it  must,  when  reduced  below  that  number  by  chal- 
lenge, or  if  the  board  is  left  without  the  proportion  of  medical  officers 
required  by  said  section,  adjourn  and  report  the  facts  to  the  convening 
authority.     When  the  board  again  meets,  the  officer  being  examined 
will  be  accorded  the  right  of  challenge  as  bef  re. 

3  If  there  be  a  reporter,  he  will  also  be  sworn.     For  form  of  oath, 
see  ante,  par.  162. 


APPENDIX  E  521 

A.  (The  officer  can  here  make  an  oral  statement  or  submit  a  written 
one.  If  a  written  statement  is  submitted  the  record  will  state:) 

The  witness  submitted  a  written  statement,  which  was  read 
to  the  board,  and  is  hereto  attached,  marked  A. 

Q.  Is  the  statement  submitted  by  you  correct? 

A.  Yes. 

(The  board  may  then  ask  further  questions.) 

Q.  Do  you  desire  to  make  any  further  statement? 

A      __ 

(When  the  officer  objects  to  retirement,  he  will  not  be  examined  at 
this  stage  of  the  proceedings,  but  may  introduce  evidence  or  make  a 
statement,  as  hereinafter  indicated.) 

Major  ---  —  ,  surgeon,  a  member  of  the  board,  was  then 
duly  sworn,  and  testified  as  follows: 

Q.  Please  submit  to  the  board  the  result  of  your  examination  of 
Captain  ----  . 

The  witness  submitted  a  written  rep'ort  signed  by  himself  and 
Assistant  Surgeon  -  —  ,  also  a  member  of  the  board,  which 

was  read  to  the  board  and  is  attached,  marked  B. 

Q.  From  what  cause  does  Captain  ---  's  disability  pro- 
ceed? 


Q.  Is  the  disability  permanent? 
A.  --  . 

Q.  Is  Captain  —  —  's  disability  such  as  to  incapacitate  him  for 
active  service? 

A.  -  . 

******** 

(The  examination  of  the  witness  should  be  conducted  so  as  to  bring 
out  all  material  facts  on  the  lines  indicated.) 

Captain  -  —  stated  that  he  had  no  question  to  ask,  (or) 

asked  the  following  questions  : 

******** 

(The  other  medical  member  of  the  board  should  then  be  similarly 
interrogated.) 

The  recorder  then  submitted  certain  papers  referred  to  the 
board  from  the  Office  of  The  Military  Secretary  of  the  Army, 
which  were  read  to  the  board  and  are  attached,  marked  -  . 

Captain  -  -  had  no  further  evidence  to  submit  nor  state- 

ment to  make.  (When  there  is  such  evidence  or  statement,  the  record 
will  duly  set  it  forth.) 

The  board  was  then  closed  for  deliberation,  and,  having  maturely 
considered,  the  case,  finds  that  Captain  —  -  is  incapacitated 

for  active  service  and  that  the  cause  of  said  incapacity  is  --  . 


522  MILITARY  LAW 

And  the  board  further  finds  that  said  incapacity  is  (or  is  not)  an 
incident  of  service. 

The  board  then  adjourned.1 


President  of  the  Board.2 


Recorder. 


io.  Forms  for  Sentences 

In  sentences  imposing  a  loss  of  rank  or  files  upon  an  officer  the 
court  may  fix  a  place  on  the  army  list  where  the  name  of  the 
accused  will  be  placed  as  a  result  of  the  sentence,  as,  for  instance, 
at  the  foot  of  the  list  of  first  lieutenants  of  infantry,  or  the  court 
may  mention  the  number  of  files  to  be  lost,  as,  for  instance,  to  lose 
ten  files  in  military  rank.  In  this  case  the  court  should  not  under- 
take to  state  where  on  the  army  list  the  name  of  the  accused  will 
appear. 

Form  1.  Reduction:     .    .    .    "to  be  reduced  to  the  ranks."  5 

Form  2.  Confinement:  .  .  .  "to  be  confined  at  hard  labor,4 
under  charge  of  the  post  guard,  for  —  —  ( — )  days." 

Form  3.  Forfeiture:  .  .  .  "to  forfeit-  -( — )  dollars  of  his 
pay,5  now  due  or  to  become  due." ( 

1  (Or  when  the  board  wishes  to  hear  the  record  read:) 

The  board  then  adjourned  to  meet at o'clock  - — .m. 


Recorder. 


SECOND  DAY'S  PROCEEDINGS. 

jg 

The  board  met  pursuant  to  adjournment. 

Present:  All  the  members  and  the  recorder. 

The  foregoing  proceedings  were  then  read  and  approved. 

The  board  then  adjourned. 


President  of  the  Board. 


Recorder. 

2  It  is  not  necessary  that  the  proceedings  should  be  authenticated 
by  the  signatures  of  all  the  members  of  the  board. 

3  See  ante,  par.  362,  363. 

4  Unless  hard  labor  be  imposed  by  a  sentence  it  can  not  be  required 
of  the  prisoner.     See  ante,  par.  343. 

5  See  ante,  par  351.     Detention  of  pay  is  no  longer  authorized;  and 
under  the  acts  of  February  12, 1895  (28  Stat.  L.  655),  and  March  16 
1896  (28  Stat.  L.  60),  pay  can  no  longer  be  retained. 

8 By  adding  the  words  "now due  or  to  become  due"  the  pay  rolls 


APPENDIX  E  523 

Form  4.  Confinement  and  forfeiture:  .  .  .  "to  be  confined  at 
hard  labor,  under  charge  of  the  post  guard,  for  -  -  ( — )  months, 
and  to  forfeit  —  —  ( — )  dollars  per  month  for  the  same  period." 

Form  5.  Dishonorable  discharge  and  forfeiture  of  pay  and  allow- 
ances:1 .  .  .  "to  be  dishonorably  discharged  the  service  of  the 
United  States,  forfeiting  all  pay  and  allowances  due  him." 

Form  6.  Dishonorable  discharge ,  forfeiture  of  pay  and  allowances, 
and  confinement:  .  .  .  "to  be  dishonorably  discharged  the  serv- 
ice of  the  United  States,  forfeiting  all  pay  and  allowances  due 
him,  and  to  be  confined  at  hard  labor  at  such  post  (or,  in  such 
penitentiary)  (or,  at  such  place)  as  the  reviewing  authority  may 
direct,  for  —  —  ( — )  years." 


ii.  Summons  for  Military  Witness 


,19-. 

To , 


You  are  hereby  summoned  to  appear  on  the day  of  , 

19 — ,  at o  clock  — .m.,  before  a  general  court-martial,  con- 
vened at  -  — ,  by  Special  Orders,  No. -,  Headquarters 

,  dated ,  19 — ,•  as  a  witness  for  the in  the 

case  of . 


Judge-Advocate  of  the  Court-martial. 


12.  Subpoena  3  for  Civilian  Witness 

UNITED  STATES   ) 

vs.  V  Subpoena. 


The  President  of  the  United  States,  to  ---  ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and  appear  in 
person  on  the  —  —  day  of  -  —  ,  19  —  ,  at  —  —  o'clock  —  .m.,  be- 
fore a  general  court-martial  of  the  United  States,  convened  at  - 
-  ,  by  Special  Orders,  No.  --  ,  Headquarters  —  —  ,  dated 

will  generally  be  simplified,  by  permitting  all  of  the  forfeiture  to  be 
collected  at  the  next  payment. 

1  See  ante,  par.  359. 

'See  ante,  par.  213. 

3  Fees  must  be  tendered  or  paid  under  Act  of  March  2,  1901.  See 
ante,  par.  214  et  seq. 


524  MILITARY  LAW 

,  19 — ,  then  and  there  to  testify  and  give  evidence  as  a 

witness  for  the in  the  above-named  case.    And  have  you  then 

and  there  this  precept. 

Dated  at ,  this day  of ,  19 — . 


Judge-Advocate  of  the  Court-martial. 


13-  Subpoena1  Duces  Tecum 

( Civilian  witness . ) 


UNITED  STATES 

vs.  V  Subpoena. 


The  President  of  the  United  States,  to ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and  appear  in 

person  on  the day  of ,  19 — ,  at o'clock  — .m.,  before 

a  general  court-martial  of  the  United  States,  convened  at , 

by  Special  Orders,  No. ,  Headquarters ,  dated  - 

,  19 — ,  then  and  there  to  testify  and  give  evidence  as  a  witness 

for  the in  the  above-named  case ;  and  you  are  hereby  required 

to  bring  with  you,  to  be  used  in  evidence  in  said  case,  the  follow- 
ing-described documents,  to  wit : .    And  have  you  then 

and  there  this  precept. 
Dated  at ,  this day  of ,  19 — . 


Judge-Advocate  of  the  Court-martial. 


14.  Subpoena  for  Civilian  Witness 

(For  deposition.')2 
UNITED  STATES  ^ 

vs.  >  Subpoena. 

The  President  of  the  United  States,  to ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and  appear  in 

person  on  the day  of ,  19 — ,  at o'clock  — .m.,  before 

at ,  detailed  to  take  your  deposition  for  use  before 

1  Fees  must  be  tendered  or  paid  under  Act  of  March  2, 1901.    See 
ante,  par.  214  et  seq. 

2  See  ante,  par.  251  et  seq. 


APPENDIX  E  525 

a  general  court-martial  of  the  United  States,  convened  at  

,  by  Special  Orders,  No. ,  Headquarters ,  dated 

-,  19 — ,  then  and  there  to  testify  and  give  evidence  as  a 


witness  for  the  in  the  above-named  case.     And  have  you 

then  and  there  this  precept. 

Dated  at ,  this day  of ,  19 — . 


Judge-Advocate  of  the  Court-martial. 

I5»  RETURN    OF   SERVICE 

(Indorsement  of  preceding  units.} l 

UNITED  STATES 
vs. 


,19-. 

I  certify  that  I  made  service  of  the  within  subpoena  on , 

the  witness  named  therein,  by  personally  delivering  to  him  in  person 
a  duplicate  of  the  same  at ,  on  the day  of ,  19 — . 


-,  being  duly  sworn,  on  his  oath  states  that  the  fore- 


going certificate  is  true. 


Subscribed  and  sworn  to  this day  of ,  19 — ,  before  me.2 


1 6.  Warrant  of  Attachment 3 

UNITED  STATES'] 
vs. 


I 


The  President  of  the  United  States,  to ,  greeting: 

WHEREAS,  —  — ,  of  -          — ,  was  on  the day  of , 

19 — ,  at  ,  duly  subpoenaed  to  appear  and  attend  at  -  — , 

,  on  the day  of ,  19 — ,  at o'clock  — .m.,  before  a 

1  On  the  back  of  each  form  of  writ  are  forms  for  both  certificate  and 
affidavit. 

2  After  service,  as  above  indicated,  the  original  subpoena  should  be 
at  once  returned  to  the  judge-advocate  of  the  court;    if  the  witness 
can  not  be  found,  the  judge-advocate  should  be  so  informed. 

•  See  ante,  par.  221. 


526  MILITARY  LAW 

general  court-martial  duly  convened  by  Special  Orders,  No. , 

dated  Headquarters  Department  of  -   — ,  -  — ,   19 — ,  to 

testify  on  the  part  of  the  -  -  in  the  above-entitled  case;  and 
whereas  he  has  failed  to  appear  and  attend  before  said  general 
court-martial  to  testify,  as  by  said  subpoena  required,  and  whereas 

he  is  a  necessary  and  material  witness  in  behalf  of  the in  the 

above-entitled  case; 

Now,  therefore,  by  virtue  of  the  power  vested  in  me,  the  under- 
signed, as  judge-advocate  of  said  general  court-martial,  by  Section 
1202  of  the  Revised  Statutes  of  the  United  States,  you  are  hereby 
commanded  and  empowered  to  apprehend  and  attach  the  said 

,  wherever  he  may  be  found  within  the of / 

and  forthwith  bring  him  before  the  said  general  court-martial 
assembled  at ,  to  testify  as  required  by  said  subpoena. 


Judge-Advocate  of  said 

General  Court-martial. 
Dated , ,  19—. 

17.  Interrogatories  and  Deposition  2 

INTERROGATORIES 
THE  UNITED  STATES"! 
vs.  > 


The  following  interrogatories  and  cross-interrogatories  to  be 
propounded  under  the  91st  Article  of  War,  to  —  — ,  stationed 
(or  residing) 3  at — ,  a  witness  for  the  prosecution  (or  de- 
fense) 3  in  the  above-entitled  case  now  pending  and  to  be  tried 
before  the  general  court-martial  convened  at ,  by  para- 
graph   ,  Special  Orders  No. ,  Headquarters  Department 

of dated 19—   are]  accePted  b^  the  court  in  °Pen 

rej  agreed  upon  by  both  parties  in 

session,  the having  been  given  reasonable  opportunity  to  sub- 
advance  of  the  assembling  of  the  court  and  subject  to  exceptions 
mit  cross-interrogatories  )  4  ,  , ,  „  - 

when  read  in  covu-t         [  and  are  «*P«>tf  ully  Awarded  to  the 

1  State,  Territory,  or  District  where  the  court  sits. 

2  See  ante,  par.  251  et  seq. 

3  Erase  the  word  inappropriate  to  the  case.    With  the  consent  of 
the  opposite  party  the  deposition  of  a  witness  residing  within  the  State, 
Territory,  or  District  in  which  the  court  sits  may  be  taken  and  read 
in  evidence.     A  written  stipulation  signed  by  both  parties  should, 
in  such  a  case,  be  attached  to  this  paper  before  it  is  signed. 

4  Erase  the  line  inappropriate  to  the  case. 


APPENDIX  E  527 

convening  authority  with  the  request  that  some  suitable  officer 
may  be  designated  to  take,  or  cause  to  be  taken,  the  deposition 
of  said  witness  thereon: 

First  interrogatory:  Are  you  in  the  military  service  of  the 
United  States?  If  yea,  what  is  your  full  name,  rank,  organization, 
and  station?  If  nay,  what  is  your  full  name,  occupation,  and 
residence? 

Second  interrogatory:  Do  you  know  the  accused,  a  in 

?  If  yea,  how  long  have  you  known  him? 

Third  interrogatory:  — ? 

Etc. 

First  cross-interrogatory: ? 

Etc. 

First  interrogatory  by  the  Court : ? 

Etc. 

Dated  at ,  this day  of ,  19 — . 


Judge- Advocate.  President.1 

HEADQUARTERS  DEPARTMENT  OF  , 

-  19-. 

,   stationed  (or  residing) 2  at ,   is  hereby 

designated  to  take,  or  cause  to  be  taken,  the  deposition  of  the  said 

— ,  a  witness  on  the  part  of  the  in  the  case  of  the 

United  States  against ,  now  pending  before  a  general 

court-martial  at .     The  deposition,  when  taken,  to  be 

sent  by  him  to  —  — ,  the  president  of  said  court  at . 

By  command  of General .  * 


Military  Secretary. 


DEPOSITION. 


the  witness  above  named,  having  been  first  duly 


sworn  by  me,  —  — ,  a  3      — ,  stationed  (or  residing) 4  at 


— ,  doth  depose  and  say  for  full  answers  to  the  foregoing  in- 
terrogatories, as  follows: 

1  If  taken  in  advance  of  the  assmebling  of  the  court,  the  inter- 
rogatories should  be  signed  by  the  judge-advocate  and  the  accused 
instead  of  the  president  and  judge-advocate. 

2  Erase  the  word  inappropriate  to  the  case. 

3  Insert  official  character:  as  "Trial  Officer  Summary  Court,"  "No- 
tary Public,"  etc. 

4  Erase  the  word  inappropriate  to  the  case. 


528  MILITARY  LAW 


To  the  first  interrogatory: 
Etc. 


(Signature  of  witness.} 
Subscribed  and  sworn  to  before  me  this day  of 19 — . 


I, ,  the  officer  designated  to  cause  the  deposition  of 

the  said to  be  taken  on  the  foregoing  interrogatories 

and  cross-interrogatories,  do  certify  that  it  was  duly  made  and 
taken  under  oath. 


1 8.  Account  of  Civilian  Witness  Not  in  Government 

Employ 

The  United  States,  to ,  Dr. 

190    EXPENSES  AS  WITNESS  BEFORE  A  MILITARY  COURT  CONVENED  UNDER 
ANNEXED  ORDERS. 


From  ,  19  —  ,  to  ,  19  —  . 

For  mileage  from  to  and  return,  being  miles 
at  five  cents  per  mile.  . 

For  allowance  while  in  attendance  on  said  court,  from  . 
19  —  t  to  ,  19  —  ,  as  per  certificate  of  Judge-Advocate 
hereon,           days,  at  $1.50  per  day 

Total  

I  solemnly  swear  that  the  above  account  is  correct ;  that  I  have 
not  been  furnished  with  Government  transportation  for  any  part 
of  the  journey  for  which  mileage  is  charged. 

,  Witness. 

1  The  jurat  to  be  signed  by  the  officer  administering  the  oath,  who 
will  add  his  official  designation.     (See  ante,  par.  256.)     If  the  oath 
is  administered  by  a  notary  public,  his  seal  will  be  affixed  to  the 
deposition. 

2  This  certificate  will  only  be  made  where  the  officer  has  caused  the 
deposition  to  be  taken;  where  the  officer  himself  administers  the  oath 
it  is  superfluous. 


APPENDIX  E 


529 


Sworn  to  and  subscribed  before  me  at 
— ,  19-. 


-,  on  this 


day  of 


I  certify  that 


Judge-Advocate* 
-,  a  civilian  not  in  Government  employ, 


has  been  in  attendance  as  a  material  witness  from ,  19 — ,  to 

— ,  19 — ,  inclusive,  before  a  —   —  court-martial,  duly  convened 

at  this  place,  and  that  he  was  duly  summoned  thereto  from . 

Place  . 

Date ,  19—. 


Judge- A  dvocate  .* 


Received  this 


of 


-,  Paymaster,  U.  S.  A., 


dollars,  in  full  of  the  above  account,  by  Check  No.  — ,  on . 

— ,  Witness. 
(SIGNED  IN  DUPLICATE.) 


19.  Account  of  Civilian  Witness  in  Government 
Employ 


-,Dr. 


The  United  States,  to 

190    EXPENSES  AS  WITNESS  BEFORE  A  MILITABY  COURT  CONVENED  UNDER 
ANNEXED  ORDERS. 


From  ,  19—,  to  ,  19—. 

For  actual  cost  of  travel  from  to  and  return,  as  per 
memorandum  annexed  ... 

For  actual  cost  of  meals  and  rooms  while  traveling  to  and 
from  said  court  between  above  dates,  inclusive,  days  . 

For  actual  cost  of  meals  and  rooms  while  in  attendance  on 
said  court  from  ,  19  —  ,  to  ,  19  —  ,  as  per  certifi- 
cate of  the  Judge-Advocate  hereon,  days  (see  Rule 
No.  7,  post,  p.  532)  

Total.  .  . 

1  If  the  witness  be  summoned  for  attendance  before  a  summary 
court,  the  summary  court  officer  will  make  the  necessary  certificate 
as  to  fact  of  attendance  and  administer  the  oath-respecting  his  expense 
account  (Digest  Opin.  J.  A.  G.,  Sec.  2406). 


530  MILITARY  LAW 

-  I  solemnly  swear  that  the  above  account  is  correct ;  that  I  have 
not  been  furnished  with  Government  transportation  for  any  part 
of  the  journey  for  which  travel  fare  is  charged,  and  that  the  journey 
was  performed  without  unnecessary  or  avoidable  delay. 

,  Witness. 

Sworn  to  and  subscribed  before  me  at ,  on  this day  of 

1Q 

i     -Li/         • 


Judge- A  dvocate  .l 

I  certify  that ,  a  civilian  in  Government  employ,  has 

been  in  attendance  as  a  material  witness  from ,  19 — ,  to , 

19 — ,  inclusive,  before  a court-martial,    duly  convened  at 

this  place,  and  that  he  was  duly  summoned  thereto  from . 


Judge-  A  dvocate  .l 
Place  -  . 
Date  -  ,  190—. 

Received  this  -  of  --  ,  Paymaster,  U.  S.  A.,  -  y- 


dollars,  in  full  of  the  above  account,  by  Check  No.  —  ,  on 


—  ,  Witness. 
(SIGNED  IN  DUPLICATE.) 


20.   Rules  Governing  Accounts  of  Civilian  Witnesses2 

The  Paymaster  is,  under  paragraphs  998  to  1002,  Army  Regu- 
lations, 1904,  governed  by  the  following  rules  in  the  treatment 
of  vouchers  for  travel  expenses  of  civilian  witnesses  before  mili- 
tary courts: 

1.  The  voucher  must  be  in  duplicate,  accompanied  by  duplicate 
authenticated  copies  of  the  order  convening  the  court  or  appoint- 
ing summary  court. 

2.  The  affidavit  of  the  witness  and  the  judge-advocate's  or  sum- 
mary court  officer's  certificate  (on  face  of  voucher)  are  required 
in  all  cases.     The  voucher  and  all  accompanying  papers  must  be 
in  duplicate. 

1  See  ante,  No.  18,  note,  p.  529. 

2  The  forms  for  "Summons  for  a  military  witness/'  for  "Subpoenas 
for  a  civilian  witness,"   for  a  "Warrant  of  attachment,"  and  for  a 
deposition,  are  obtained  from  The  Military  Secretary  of  the  Army. 
The  forms  for  accounts  of  civilian  witnesses  and  of  reporters  are  ob- 
tained from  the  Paymaster-General. 


APPENDIX  E  531 

3.  A  civilian  not  in  Government  employ  l  duly  summoned  to 
appear  as  a  witness  before  a  military  court  will  receive  $1.50  per 
day  for  each  day  actually  in  attendance  upon  the  court,  and  5  cents 
a  mile  for  going  from  his  place  of  residence  to  the  place  of  trial  or 
hearing,  and  5  cents  a  mile  for  returning ;  but  in  Wyoming,  Mon- 
tana, Washington,  Oregon,  California,  Utah,  New  Mexico,  Arizona, 
and  Porto  Rico  he  will  be  paid  15  cents  for  each  mile  necessarily 
traveled  over  any  stage  line  or  by  private  conveyance,  and  in 
Porto  Rico  10  cents  for  each  mile  over  any  railway  in  such  travel.2 

Civilian  witnesses,  not  in  Government  employ,  summoned  to 
attend  courts-martial  in  the  Philippine  Islands,  are  entitled  to 
SI. 50  per  day  for  each  day  of  attendance  on  the  court,  and  5  cents 
per  mile  for  the  distance  traveled  to  and  from  the  court.  If  fur- 
nished with  transportation  by  the  Government,  42.858  per  cent  of 
the  5  cents  per  mile  will  be  deducted  as  cost  of  transportation  fur- 
nished, and  57.142  per  cent  allowed  for  subsistence  and  other  ex- 
penses of  the  witness  (Cir.  45,  A.  G.  0.,  1902,  and  Act  of  Philippine 
Commission  No.  1130,  April  28,  1904). 

In  case  a  witness  duly  subpoenaed  before  a  general  court-martial 
refuses  to  appear  or  qualify  as  a  witness  or  to  testify  or  produce 
documentary  evidence  as  required  by  law,  he  will  at  once  be  ten- 
dered or  paid  by  the  nearest  paymaster  these  fees  and  mileage  and 
will  thereupon  be  again  called  upon  to  comply  with  the  require- 
ments of  law.  Civilian  witnesses  will  be  paid  by  the  Pay  Depart- 
ment (A.  R.  1000). 

4.  The  items  of  expenditure  authorized  in  paragraphs  998  to 
1002,  Army  Regulations,  will  be  set  forth  in  detail  in  a  memoran- 
dum which  will  be  attached  to  each  voucher.     No  other  items 
will  be  allowed.     The  correctness  of  the  items  will  be  attested  by 
the  affidavit  of  the  witness,  to  be  made,  when  practicable,  before 
the  judge-advocate. 

5.  The  certificate  of  the  judge-advocate  will  be  evidence  of  the 
fact  and  period  of  attendance,  and  will  be  made  on  the  voucher. 

6.  Upon  execution  of  the  affidavit  and  certificate  the  witness 
will  be  paid  upon  his  discharge  from  attendance,  without  await- 
ing performance  of  return  travel.     The  charges  for  return  journeys 
will  be  made  upon  the  basis  of  the  actual  charges  allowed  for  travel 
to  the  court. 

1  A  retired  Army  officer  is  a  civilian  not  in  Government  employ  in 
contemplation  of  A.  R.  999  (10  Comp.  Dec.  51).     An  employee  of  the 
civil  government  of  the  Philippine  Islands,  paid  from  Insular  funds,  is 
not  in  the  employ  of  the  Government  within  the  meaning  of  A.  R  999. 

2  Par.  999,  A.  R.,  in  accordance  with  Section  848,  R.  S.,  act  August  3, 
1892,  vol.  2,  Sup.  R.  S.,  p.  65,  and  act  approved  March  2,  1901,  as  to 
Porto  Rico. 


532  MILITARY  LAW 

7.  Civilian  witnesses  in  Government  employ  will  receive   as 
follows : 

(a)  Amount  actually  paid  for  cost  of  transportation  or  travel  fare. 
(6)  Amount  actually  paid  for  cost  of  transfers  to  and  from 
railway  stations,  not  exceeding  50  cents  for  each  transfer. 

(c)  Amount  actually  paid  for  cost  of  one  double  berth  in  sleep- 
ing-cars or  on  steamers  where  an  extra  charge  is  made  therefor. 

(d)  The  actual  cost  of  meals  and  rooms  at  a  rate  not  exceeding 
$3  per  day  for  each  day  actually  and  unavoidably  consumed  in 
travel  or  in  attendance  upon  the  court. 

8.  Travel  must  be  estimated  by  the  shortest  available  usually 
traveled  route;  the  charge  for  cost  of  travel  (items  a,  6,  c)  by  es- 
tablished lines  of  railroad,  stage,  or  steamer  should  not  exceed 
the  usual  rates  in  like  cases,  the  time  occupied  to  be  determined 
by  the  official  schedules,  reasonable  allowance  being  made  for  un- 
avoidable detention. 

9.  The  voucher,  or  the  order  for  attendance,  will  be  presumed 
to  show  in  all  cases,  by  indorsement  or  otherwise,  if  transporta- 
tion in  kind  or  commutation  of  rations  has  been  furnished.     Trans- 
portation in  kind  will,  for  any  distance  covered  thereby,  be  a  bar 
to  payment  of  item  a.     Indorsements  of  transportation  furnished 
will  be  scrutinized  to  ascertain  if  any  part  of  item  c  has  been  in- 
cluded. 

Commutation  of  rations  will  be  a  bar  to  payment  of  item  d. 
Transportation  and  commutation  of  rations  will  be  a  bar  to  any 
payment. 

10.  No  per  diem  allowance  can  be  made  where  the  attendance 
upon  the  court  does  not  require  the  witness  to  leave  his  station. 
(This  applies  only  to  civilians  in  Government  employ.) 

11.  Compensation  to  civilians  in  or  out  of  Government  employ, 
for  attendance  upon  civil  courts,  is  payable  only  by  the  civil  au- 
thorities. 

12.  If  a  witness  is  in  Government  employ  the  judge-advocate 
will  state  the  fact.     If  it  does  not  appear  in  the  certificate  or  else- 
where in  the  papers,  and  is  not  known  to  the  paymaster,  it  will 
be  assumed  that  the  witness  is  not  in  Government  employ. 

13.  Whenever  needed,  judge-advocates  can  procure  blank  ac- 
counts for  civilian  witnesses  from  any  army  paymaster  or  from  the 
Paymaster-General's  Office.      The  accounts  may  then  be  made 
out  upon  the  witness's  discharge  from  attendance.     If  no  pay- 
master be  present  at  the  place  where  the  court  sits,  the  accounts, 
authenticated  as  above  directed,  may  be  transmitted  to  any  pay- 
master, with  confidence  that  the  witness  will  receive  his  pay  with- 
out unnecessary  delay. 


APPENDIX  -E 


533 


14.  Accounts  of   citizen   witnesses   are   not   transferable.     See 
Cir.  13,  A.  G.  O.,  1895. 

15.  Signature  of  witness  when  signed  by  mark  must  be  witnessed. 

21.  Account  of  Reporter  1 

The  United  States,  to ,  Reporter,  Dr. 


(Place  of  business  or  residence.) 


(City  or  town.) 


(State  or  Territory.) 


Date. 


To  services  as  reporter  before  a  general  coi.rt- 
martial  convened  at  —  —  pursuant  to  Special 

Orders  No.  ,  Headquarters  Department  of 

—,19— 

To hours  before  the  court  at  §1  per  hour.  .  .t. 

To folios  at  10  cents  per  folio 

To folios  at  5  cents  per  folio 

To folios  at  2  cents  per  folio 

To days  in  going  to,  attendance,  and  return 

from  court,  at  $3  per  day  2 

To •  miles  2  at  8  cents  per  mile  from to 

in  going  3  to  the  court 


Total. 


Dollars. 


Cts. 


I  CERTIFY  that  —  —  was  employed  by  me  as  a  reporter  for 

a  court-martial  under  Section  1203,  Revised  Statutes,  and  that 
the  account  for  his  services  as  stated  above  is  correct  and  just. 


Received,  at 


the 


day  of 


Judge- A  dvocate . 
19—,  of , 


Paymaster,  U.  S.  A.,  the  sum  of 


dollars  and 


cents,  in 


full  of  the  above  account,  which  I  certify  to  be  correct. 
Check  No.  — ,  on . 


(SIGNED  IN  DUPLICATE.) 

1  The  authority  of  the  department  commander  for  the  employment 
of  a  reporter  for  a  court-martial,  and  of  the  Secretary  of  War  for  a 
court  of  inquiry  or  a  retiring  board,  must  be  filed  with  the  voucher 
on  which  payment  is  made. 

2  Mileage  and  per  diem  is  allowed  only  when  the  distance  to  place 
of  holding  the  court  exceeds  10  miles. 

3  No  mileage  is  allowed  for  returning  from  the  court. 


534  MILITARY  LAW 


22.  Form  for  Special  Orders 

HEADQUARTERS  DEPARTMENT  OF , 

-,  19—. 

SPECIAL  ORDERS,  ) 
No. .        f 


3.  Recruit ,  General  Service,  U.  S.  Army,  having  been 

tried  by  a  general  court-martial  convened  at  —  — ,  and  found 

guilty  of  fraudulent  enlistment,  in  violation  of  the  62d  Article  of 
War,  was  sentenced  "to  be  dishonorably  discharged  the  service 
of  the  United  States,  forfeiting  all  pay  and  allowances  due  him,  and 
to  be  confined  at  hard  labor  at  such  post  as  the  reviewing  authority 
may  direct,  for  the  period  of  one  (1)  year." 

The  sentence  is  approved  and  will  be  duly  executed. 

-  is  designated  as  the  place  of  confinement,  to  which  place 
the  prisoner  will  be  sent  under  proper  guard. 

By  command  of  Brig.-Gen. : 

> 
Military  Secretary. 


FORM  A 
23.  Habeas  Corpus  by  United  States  Court1 

RETURN  TO    WRIT 

In  re .     (Name  of  party  held.} 

(Writ  of  habeas  corpus — Return  of  respondent.) 
To  the .     (Court  or  judge.) 

The  respondent,  Major  -  — ,  U.  S.  Infantry,  upon  whom 

has  been  served  a  writ  of  habeas  corpus  for  the  production  of  - 

— ,  respectfully  makes  return  and  states  that  he  holds  the  said 

by  authority  of  the  United  States  as  a  soldier  in  the 

United  States  Army  (or  "as  a  general  prisoner  under  sentence  of 
general  court-martial")  under  the  following  circumstances: 

That  the  said was  duly  enlisted  as  a  soldier  in  the 

service  of  the  United  States  at , ,  on ,  19 — ,  for 

a  term  of years.     (//  the  offense  is  fraudulent  enlistment  this 

recital  should  be  omitted.) 

(Here  state  the  offense.     If  it  is  fraudulent  enlistment  by  represent- 
ing himself  to  be  of  age,  it  may  be  stated  as  follows:) 

1  See  ante,  par.  226. 


APPENDIX  E  535 

That  on  the day  of ,  19 — ,  at , ,  the  said  — — 

,  baing  then  a  minor,  did  fraudulently  enlist  in  the  military 

service  of  the  United  States  for  the  term  of  -    -  years,  by  falsely 
representing  himself  to  be  over  twenty-one  years  of  age,  to  wit, 
-  years  and  -  —  months;   and  has,  since  said  enlistment,  re- 
ceived pay  and  allowances  (or  either)  thereunder. 

(//  the  offense  is  desertion,  it  may  be  stated  substantially  as  follows:) 

That  the  said  — deserted  said  service  at , ,  on 

— ,  19 — ,  and  remained  absent  in  desertion  until  he  was 

apprehended  at , ,  on  —       ,  19 — ,  by  —  — ,  and 

was  thereupon  committed  to  the  custody  of  the  respondent  as 
commanding  officer  of  the  post  of . 

That  said  —  —  has  been  placed  in  confinement  (or  "arrest," 

•as  the  case  may  be),  charged  with  said  offense,  and  formal  charges 
against  him  therefor  have  been  preferred,  a  copy  of  which  is  hereto 
.annexed  (or  "are  being  prepared "),  and  that  he  will  be  brought 
to  trial  thereon  as  soon  as  practicable  before  a  court-martial  to  be 

convened  by  the  commanding  general  of  the  Department  of 

(or  "convened  by  Special  Orders,  No. ,  dated  Headquarters 

Department   of   -    — , ,    19 — ,    a  copy   of    which   is   hereto 

annexed"). 

(//  the  party  held  is  a  general  prisoner,  the  following  paragraph 
should  be  substituted  for  the  preceding  paragraph:) 

That  the  said  -  -  was  duly  arraigned  for  said  offense 

before  a  general  court-martial,  convened  by  Special  Orders,  No. 

— ,  dated  Headquarters  Department  of ,  -  — ,  19 — , 

was  convicted  thereof  by  said  court,  and  was  sentenced  to  be , 

which  sentence  was  duly  approved  on  the  —   —  day  of ,   19 — , 

by  the  officer  ordering  the  court  (or  "by  the  officer  commanding 
said  Department  of  -  -  for  the  time  being")  as  required  by  the 
104th  Article  of  War.  A  copy  of  the  order  promulgating  said  sen- 
tence is  hereto  attached. 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus  the 
respondent  herewith  produces  before  the  court  the  body  of  the 
said  -  — ,  respectfully  refers  to  the  decisions  cited  in  the 

annexed  brief,  and  for  the  reasons  set  forth  in  this  return  prays 
this  honorable  court  to  dismiss  the  said  writ. 


Major, U.  S.  Infantry. 

Dated , , 

,19—. 


536  MILITARY  LAW 

FORM  B 
24.  Habeas  Corpus  by  State  Court 1 

RETURN   TO   WRIT 

(Make  return  as  in  case  of  writ  by  a  United  States  court,  except 
as  to  last  paragraph,  for  which  substitute  as  follows:) 

And  said  respondent  further  makes  return  that  he  has  not  pro- 
duced the  body  of  the  said ,  because  he  holds  him  by 

authority  of  the  United  States  as  above  set  forth,  and  that  this 
court  (or  "your  honor,"  as  the  case  may  be)  is  without  jurisdict;on 
in  the  premises,  and  he  respectfully  refers  to  the  decisions  of  the 
Supreme  Court  of  the  United  States  in  Ableman  v.  Booth,  21 
Howard,  506,  and  Tarble's  Case,  13  Wallace,  397,  as  authority  for 
his  action,  and  prays  this  court  (or  "your  honor")  to  dismiss  the 
writ. 


Major, U.  S.  Infantry. 

Dated , , 

,  19—. 


25.  Instructions  as  to  Returns  to  Writs  of  Habeas 
Corpus 

The  following  instructions  in  regard  to  returns  under  paragraphs 
1007  and  1008,  Army  Regulations,  in  the  cases  of  soldiers  who 
have  committed  military  offenses  and  are  held  for  trial  or  punish- 
ment therefor,  and  of  general  prisoners,  are  for  the  information 
and  guidance  of  all  concerned: 

1.  The  return  under  paragraph  1008,  Army  Regulations,  will  be 
made  in  accordance  with  Form  A  (see  ante,  No.  23),  and  will  refer, 
as  in  last  paragraph  of  that  form,  to  the  brief  of  authorities  which 
follows  these  instructions,  and  a  copy  of  that  brief  will  be  annexed 
to  the  return.     Should  the  court  order  the  discharge  of  the  party, 
the  officer  making  the  return,  or  counsel,  should  note  an  appeal 
pending  instructions  from  the  War  Department,  and  he  will  re- 
port to  The  Military  Secretary  of  the  Army  the  action  taken  by  the 
court  and  forward  a  copy  of  the  opinion  of  the  court  as  soon  as  it 
can  be  obtained. 

2.  The  return  under  paragraph  1007,  Army  Regulations,  will 
be  made  in  accordance  with  Form  B  (see  ante,  No.  24),  but  a  copy 

1  See  ante,  par.  227. 


APPENDIX  E  537 

of  the  brief  of  authorities  is  not  intended  to  be  attached  to  the 
returns  to  writ  of  habeas  corpus  issuing  frcm  a  State  court. 

26.  Brief  to  be  Filed  with  Return  to  a  Writ  of  Habeas 
Corpus  Issued  by  United  States  Court  in  Case  of 
a  Soldier  whose  Discharge  is  Sought  under 
Section  1117,  Revised  Statutes 

If  a  minor  sixteen  years  old  or  over  claims  to  be  twenty-one 
years  of  age  or  over  and  enlists  without  the  consent  required  by 
Section  1117,  Revised  Statutes,  the  contract  of  enlistment  is  not 
voidable  by  the  minor,  nor  by  his  parents  or  guardian,  if  at  the 
time  of  the  filing  of  the  petition  the  soldier  is  held  in  pursuance  of 
a  sentence  of  a  court-martial,  or  any  step  has  been  taken  with  a 
view  to  bringing  him  before  such  court. 

1.  CONTRACT  NOT  VOIDABLE  BY  MINOR  * 

(a)  When  soldier  is  not  in  confinement. — United  States  ex  rel. 
Wagner  v.  Gibbon,  24  Federal  Reporter,  135.  In  this  case  Wagner, 
becoming  "tired  of  the  service,"  sought  his  discharge  from  the 
Army  "solely  on  the  ground  of  minority  at  the  time  of  enlist- 
ment." This  the  court  refused  to  grant,  holding  that  Section 
1117,  Revised  Statutes,  "was  made  for  the  exclusive  benefit  of 
parents  and  guardians,"  and  that,  quoting  from  the  syllabus — 

A  minor  over  sixteen  years  of  age,  who  at  the  time  of  his  enlistment 
makes  affidavit  that  he  is  twenty-one  years  of  age,  will  not,  on  his  own 
application,  be  released  on  habeas  corpus  on  the  ground  that  he  was  a  minor 
at  the  time  of  his  enlistment,  and  that  the  written  consent  of  his  guardian* 
was  not  obtained. 

(6)  When  soldier  is  in  confinement. — In  re  Morrissey,  137  United 
States,  157;  In  re  Grimley,  137  United  States,  147;  In  re  Wall,  8 
Federal  Reporter,  85;  In  re  Davison,  21  Federal  Reporter,  618; 
In  re  Zimmerman,  30  Federal  Reporter,  176;  In  re  Hearn,  32 
Federal  Reporter,  141;  In  re  Spencer,  40  Federal  Reporter,  149; 
In  re  Lawler,  40  Federal  Reporter,  233;  Solomon  v.  Davenport, 
87  Federal  Reporter,  318. 

In  the  Morrissey  case  the  Supreme  Court  of  the  United  States 
settles  this  beyond  question.  Morrissey,  a  "minor  of  seventeen 
years  of  age,  enlisted  without  the  consent  of  his  mother,  who  was 
living.  He  deserted,  remained  in  concealment  until  he  reached 
his  majority,  and  then  presented  himself  before  a  recruiting  officer 
and  demanded  his  discharge  from  the  Army  on  the  ground  that 
he  was  a  minor  when  enlisted.  The  court  said  that  the  provision, 
of  Section  1117,  Revised  Statutes— 

1  See  ante,  par.  710. 


538  MILITARY  LAW 

is  for  the  benefit  of  tne  parent  or  guardian,  *  *  *  but  it  gives  no  privi- 
lege to  the  minor.  *  *  *  An  enlistment  is  not  a  contract  only,  but  effects 
a  change  of  status.  It  is  not,  therefore,  like  an  ordinary  contract,  voidable 
by  the  infant.  *  *  *  The  contract  of  enlistment  was  good  so  far  as  the 
petitioner  is  concerned.  He  was  not  only  de  facto,  but  de  jure,  a  soldier — 
amenable  to  military  jurisdiction. 

All  the  cases  cited  are  instructive  as  illustrative  of  the  different 
circumstances  under  which  this  principle  has  been  declared. 

In  the  Lawler  case  the  deserter  was  arrested  and  "held  as  such 
awaiting  trial,  which  will  be  as  soon  as  a  court-martial  can  be  con- 
vened and  organized  for  that  purpose. " 

In  the  case  of  Solomon  v.  Davenport,  the  deserter  was  held  by  a 
sheriff  under  a  warrant  of  a  United  States  commissioner. 

In  the  Spencer  case  the  court  said: 

The  authorities  which  have  been  read  to  me  seem  to  establish  very  con- 
clusively this  rule: — that  the  enlistment  of  a  minor  is  voidable,  not  neces- 
sarily void;  and  that  he  does  really  become  by  such  enlistment,  although 
under  age,  engaged  in  the  service  of  the  United  States,  and  subject  to  the 
power  and  jurisdiction  of  the  military  authorities;  and,  such  being  the  case, 
the  court-martial  had  jurisdiction  to  arrest  and  try  him  for  the  charge  of 
desertion. 

2.  CONTRACT  NOT  VOIDABLE  BY  PARENTS  OR  GUARDIANS  IF  THE 
SOLDIER  IS  HELD  PURSUANT  TO  A  SENTENCE  OF  A  COURT-MARTIAL 
OR  ANY  STEP  HAS  BEEN  TAKEN  WITH  A  VIEW  TO  BRINGING  HIM 
BEFORE  SUCH  COURT 

In  re  Kaufman,  41  Federal  Reporter,  876;  In  re  Dohrendorf  et 
al.,  40  Federal  Reporter,  148 ;  In  re  Cosenow,  37  Federal  Reporter, 
668;  In  re  Dowd,  90  Federal  Reporter,  718;  In  re  Miller,  114 
Federal  Reporter,  838;  U.  S.  v.  Reaves,  126  Federal  Reporter, 
127;  In  re  Lessard,  134  Federal  Reporter,  305;  Ex  parte  Anderson, 
16  Iowa,  595;  McConologue's  Case,  107  Massachusetts,  170;  In  re 
Scott,  144  Fed.  Rep.,  79. 

In  the  Kaufman  case  the  father  sought  the  discharge  of  his  son, 
who  was  held  by  the  military  authorities  and  had  been  ordered 
foefore  a  military  court  for  trial  as  a  deserter.  Quoting  from  the 
syllabus : 

A  minor  who  enlists  in  the  United  States  Army  upon  his  representation 
that  he  1*3  of  age,  and  receives  pay  and  clothing  and  afterwards  deserts  and 
is  arrested  as  a  deserter,  and  at  the  time  of  his  petition  is  held  by  the  United 
States  awaiting  trial  by  a  court-martial  for  the  crime  of  desertion,  will  not 
be  released  under  a  writ  of  habeas  corpus  upon  the  ground  that  being  a  minor 
his  enlistment  was  unlawful  and  contrary  to  the  Revised  Statutes  of  the 
United  States. 

In  the  Cosenow  case  the  minor  swore  that  he  was  twenty-one 


APPENDIX  E  539 

years  and  seven  months  old  at  the  time  of  enlistment.  He  deserted, 
and  at  the  time  of  the  filing  of  the  petition  was  held  in  custody 
awaiting  the  action  of  the  reviewing  authority  on  the  proceedings 
of  the  court-martial.  His  father  sought  the  discharge  of  his  son 
on  the  ground  of  infancy  at  the  time  of  enlistment.  The  court 
refused  to  discharge  him,  holding  that  "  an  enlistment  contrary  to 
law  is  not  void,  but  voidable";  that  the  court-martial  had 
jurisdiction  of  the  offense,  and  the  soldier  "  must  be  remanded 
to  await  the  result  of  his  trial." 

The  Dowd  case  arose  on  the  application  of  the  mother  for  the 
release  of  her  son,  who  was  held  under  sentence  of  a  summary 
court.  The  court  held,  quoting  from  the  syllabus: 

The  enlistment  of  a  minor  in  the  Army  without  the  consent  of  his  parents 
or  guardian,  required  by  Revised  Statutes,  Section  1117,  is  not  void,  but 
voidable  only,  and  while  he  remains  in  the  service  under  such  enlistment 
the  minor  is  amenable  to  the  Articles  of  War,  and  can  not  be  remanded  to 
the  custody  of  his  parents  by  a  civil  court  on  a  writ  of  habeas  corpus  while 
undergoing  a  sentence  imposed  on  him  by  a  court-martial  for  a  violation  of 
such  Articles. 

In  the  Anderson  case  it  appears  that  a  minor  enlisted  without 
his  father's  consent,  and  being  held  for  trial  before  a  court-martial 
for  desertion,  his  father  sought  his  discharge  on  habeas  corpus. 
The  court  refused  to  discharge  the  soldier,  saying  "he  must  abide 
by  the  decision  of  the  latter  court  (court-martial)  before  the 
question  of  the  validity  of  his  enlistment  can  be  determined  in  the 
civil  courts  on  habeas  corpus." 

In  McConologue's  Case  the  court  said: 

A  minor's  contract  of  enlistment  is  indeed  voidable  only  and  not  void, 
and  if,  before  a  writ  of  habeas  corpus  is  sued  out  to  avoid  it,  he  is  arrested 
on  charges  of  desertion,  he  should  not  be  released  by  the  court  while  pro- 
ceedings for  his  trial  by  the  military  authorities  are  pending. 

By  Act  of  July  27, 1892,  "  fraudulent  enlistment,  and  the  receipt 
of  any  pay  or  allowance  thereunder,  is  ...  declared  a  military 
offense  and  made  punishable  by  court-martial  under  the  62d  Article 
of  War."  A  minor  who  procures  his  enlistment  by  representing 
himself  to  be  over  age  commits  this  offense,  and  the  statute 
authorizes  his  punishment  therefor.  In  general  it  may  be  stated 
that  where  a  minor  has  committed  a  military  offense  the  interests 
of  the  public  in  the  administration  of  justice  are  paramount  to 
the  right  of  the  parent  and  require  that  the  soldier  shall  abide 
the  consequences  of  his  offense  before  the  right  to  his  discharge 
be  passed  upon.  (Digest  Opin.  J.  A.  G.,  Sec.  1258  and  1264,  and 
notes.) 


540  MILITARY  LAW 

The  soldier  should  not  be  allowed  to  escape  punishment  for  his 
offense,  even  though  his  parents  assert  their  right  to  his  services. 
A  minor  in  civil  life  is  liable  to  punishment  for  a  crime  or  misde- 
meanor, even  though  his  confinement  may  interfere  with  the  rights 
of  his  parents.  In  re  Miller  (114  Fed.  Rep.,  838)  it  was  held  that 
a  minor  sixteen  years  old  or  over  "enlisting  without  the  consent 
of  his  parents,  on  representation  that  he  is  of  age,  becomes  a  soldier 
amenable  to  military  jurisdiction  for  military  offenses,  and  subject 
to  release  from  service  only  on  application  from  his  parents,  who 
can  not  prevent  his  court-martial  for  past  military  offenses."  In  the 
opinion  of  the  court  (page  842)  it  is  said: 

The  common  law,  unaided  by  statute,  fully  recognizes  the  parents'  right 
to  the  custody  and  services  of  their  minor  child;  but  it  has  never  been  held 
that  they  could,  by  the  writ  of  habeas  corpus  or  otherwise,  obtain  his  cus- 
tody and  his  immunity  when  he  was  held  by  an  officer  of  a  civil  court  of 
competent  jurisdiction  to  answer  a  charge  of  crime.  His  enlistment  having 
made  the  prisoner  a  soldier  notwithstanding  his  minority,  he  is  answerable 
to  the  military  law  just  as  the  citizen  who  is  a  minor  is  answerable  to  the  civil 
law.  The  parents  can  not  prevent  the  law's  enforcement  in  either  case. 

These  views  were  cited  with  approval  in  U.  S.  v.  Reaves  (126 
Fed.  Rep.,  127),  where,  upon  full  consideration  of  the  authorities, 
the  circuit  court  of  appeals  remanded  Reaves,  a  minor  who  had 
deserted  from  the  Navy,  to  the  custody  of  the  naval  authorities 
as  represented  by  the  chief  of  police  who  had  apprehended  him. 


INDEX 


PAR.    PAGE 

Abandoned  property 83S    450 

Abandoning  fort,  post,  or  guard,  etc.  (see  Art.  42) 749     372 

Abatement  (see  Pleas) 180      94 

Absence: 

members  of  boards  (see  Boards). 

members  of  courts-iLartial  (see  Courts-martial). 

members  of  courts  of  inquiry  (see  Courts  of  Inquiry). 

more  than  one  mile  from  camp  (see  Art.  34) 741     361 

of  officers  and  soldiers  at  muster  (see  Arts.  7  and  12) .   719     335 

Absence  without  leave  (see  Art.  32) 739    359 

acquittal  of,  includes  desertion  connected  with  offense.   754     376 

defense  for 739     359 

forfeitures  for  (see  Forfeitures). 

included  in  desertion.  . 754     376 

punishment  for  (see  Punishments), 
stoppages  for  (see  Stoppages). 

Accomplices : 

as  witness,  credibility 627     284 

testimony  of,  when  admitted 627     285 

Accountability  for  property  (see  Public  Property). 

Accounts: 

civilian  witness,  rules  governing.  Appendix  E 530 

civilian  witness  in  government  employ,  form  for,  Ap- 
pendix E 529 

duplication  of  pay  accounts  (see  Arts.  60  and  61). 

of  civilian  witness  not  in  government  employ,  form 

for,  Appendix  E 528 

of  reporter,  form  for,  Appendix  E 533 

Accused : 

amenability  to  trial 54  29 

arraignment  of 391  181 

arraignment  of.  in  irons 156  81 

asking   questions  after  examination  of  witness  has 

closed 246  121 

as  witness 263  1 26 

before  court  of  inquiry,  may  testify  at  his  own  request .   470  216 

cannot  be  compelled  to  incriminate  himself 626  284 

challenges  by 388  180 

541 


542  INDEX 


Accused  (continued): 

counsel  tor 154  so, 

defense  of  (see  Defenses). 

duty  of  counsel  for 157  gj_ 

entitled  to  copy  of  record  of  trial,  how  secured 821  435. 

escape  after  jurisdiction  is  assumed  for  trial 156  81 

evidence  as  to  character,  when  admissible 591  26G 

introduction  of 154  §Q, 

judge-advocate  as  counsel  for,  duty  of 155  SO- 

latitude  allowed  in  defense 267  129 

f    262  125. 

may  testify  in  his  own  behalf -J    550  247 

I    626  284 

may  withdraw  or  change  plea 207  104 

pleas  of  (see  Pleas). 

pleading  under  wrong  name,  etc 182  95 

present  at  revision  proceedings  when 415  190 

presumption  of  innocence 602  272 

punishment  of  (see  Punishments). 

right  to  challenge  (see  Challenge) 166  86 

right  to  cross-examine  witness 241  120 

sentence  of  (see  Sentence). 

served  with  copy  of  charges 128  66 

statement  of 402  184 

Accuser  or  prosecutor : 

court  to  be  appointed  by  next  higher  commander  /    780  418 

when \    779  417 

defined 43  22 

how  determined  in  case  of  a  commander  authorized  to 

convene  court 43  22 

may  remain  in  court  after  testifying 233  116 

provisions  as  to,  limited  to  general  courts-martial.  ...     43  23 
Acquittal : 

effect  of,  on  charge  of  desertion,  as  to  absence  without 

leave  involved 754  376 

of  minor  included  offense  precludes  trial  on  major 

offense 199  101 

of  specific  offense,  acquits  of  minor  included  offense. .    198  101 

tie  vote  acquits  (see  Voting) 376  175 

Act: 

establishing  summary  court,  Appendix  B 480 

to  prevent  failure  of  military  justice,  Appendix  C. .  . .  482 

Adjournment  (see  Record) 411  187 

from  day  to  day 411  188 

shown  in  record  and  authenticated  by  judge-advocate  411  188 

sine  die 411  187 

Administrator : 

commander  in  charge  of  effects  of  deceased  soldier  not 

administrator 833  447 

officer  in  charge  of  effects  of  deceased  officer  not  an 

administrator 832  445- 

Admissions  pertain  to  civil  cases  (see  Confessions) 583  262 


INDEX  543 

PAR.     PAGE 

Affidavit  (see  Depositions): 

as  to  damage,  loss,  etc.,  surveys  on  property 539     242 

for  arrest  of  offenders  against   U.  S.  laws,  how  and 

before  whom  made 839     452 

for  search  warrant,  how  and  before  whom  made 839     453 

Alarms : 

false  (Art.  41 ;  see  False  Alarms) 748     371 

Alibi  (see  Defense): 

burden  of  proof 289     136 

Allowances : 

forfeiture  of  (see  Forfeitures). 

Amenability: 

double,  of  person  in  military  service 112  59 

of  military  persons  to  suit  in  civil  courts  in  certain 

cases 116  61 

to  military  jurisdiction  (see  Jurisdiction). 

of  members  of  military  establishment  (see  Art.  64).  . .  771  414 

militia  (see  Arts.  64  and  124) 831  440 

retainers  to  camp  (see  Art.  63) 770  413 

volunteers  (see  Arts.  64  and  123) 830  438 

Animus: 

establishes  fact  as  to  "Accuser  or  Prosecutor  " 779     417 

Appeal  (see  Jurisdiction): 

courts-martial  judgments,  not  subject  to 62  32 

(  87  47 

from  regimental  court  for  doing  justice \  89  48 

t  737  357 
Appearance : 

of  witness  (see  Witness;  Subpoenas) 212  107 

Appendices: 

Appendix  A,  Articles  of  War 459 

Appendix  B,  Act  Establishing  Summary  Court 480 

Appendix  C,  Act  to  Prevent  Failure  oi  Military  Jus- 
tice   482 

Appendix  D,  Executive  Order  Establishing  Limits  of 

Punishment 484 

Appendix  E,  General  Forms 494 

Apprehension  of  Deserters  (see  Deserters). 
Approval  of  Proceedings  (see  Reviewing  Authority). 

Armies : 

persons  serving  with,  in  the  field 770  413 

purpose  for  which  employed  in  enforcement  of  the  /  690  315 

laws \  690  316 

f  829  437 

rank  of  officers  in \  830  438 

[  831  439 

Arms: 

accountability  for  (see  Returns) 717     334 


544  INDEX 

PAR.  PAGE 

Army: 

articles  of  war  for  the  government  of 706  324 

as  posse  comitatus,  only  when 689  315 

command  in 829  437 

Army  Regulations: 

administrative  rules 12  7 

approved  by  Congress,  lorce  of 13  8 

classes  of 12  7 

enacted  by  Congress,  how,  force  of,  how  changed  or 

modified 12  7 

founded  on  constitutional  power  of  the  President.  ...  13  8 

how  made,  authority  for 11  6 

issued  by  the  President  as  commander-in-chief 12  7 

how  modified  or  changed 12  7 

made  pursuant  to,  or  in  execution  of,  a  statute,  force 

of,  how  changed  or  modified 12  7 

mandatory  upon  the  army 13  8 

Arraignment  (Art.  89;  see  Plea^): 

accused  may  be  arraigned  on  several  charges  at  one 

trial 120  63 

accused  standing  mute,  or  answering  foreign  to  the  /  209  105 

purpose \  796  423 

must   be  made  after  court  and  judge-advocate  are 

sworn 393  182 

to  be  shown  in  record 391  181 

when  and  how  made 177  93 

Arrest : 

breach  of,  by  officer,  penalty 93  52 

breach  of,  unintentional  or  inadvertent 103  55 

by  civil  authority  of  soldiers  on  mesne  process  or  for 

debt 697  319 

by  civil  authorities  of  persons  in  the  military  service.  107  57 

by  junior  under  Art.  24 94  53 

by  military  officer,  no  warrant  required 90  50 

by  State  authorities,  action  to  be  taken  by  officer.  .  .  701  321 

definition  of 90  50 

f  91  51 

duration  of <{  777  415 

I  778  416 

effect  of  status  of,  on  officer 99  54 

exception  to  rule  as  to  who  may  make,  Art.  24 94  52 

execution  of  order  by  military  officer 90  51 

for  military  offense 90  50 

for  offense  against  the  U.  S.  laws,  how  and  by  whom 

made 839  451 

how  made  in  civil  life 90  50 

limit,  extension  of 102  55 

of  enlisted  men  (see  Enlisted  Men;  Art.  66) 104  55 

of  enlisted  men 773  414 

of  medical  officers 93  52 

of  officers  (see  Art.  65) 772  414 

of  officers,  how  made 92  51 


INDEX  545 

PAR.  PAGE 

Arrest  (continued) : 

ot  officers,  to  be  for  serious  offenses  only 93  52 

ot  persons  in  military  service  at  a  military  post 108  58 

ol  retired  officers 95  53 

of  suspected  persons,  under  martial  law 674  307 

officer,  considered  on  parole 98  54 

officer,  entitled  to  copy  of  charges  and  to  trial,  limits.  778  416 
officer  under  charge  of  guard,  not  relieved  from  re- 
sponsibility of  status 100  54 

officer,  not  to  wear  sword 98  54 

officer,  deprivation  of  sword  not  essential 99  54 

officer  on  honor  to  keep 101  54 

omission  does  not  aft'ect  jurisdiction  ot  court-martial. .  93  52 

penalty  for  breach  of,  by  officer 772  414 

penalty  for  breach,  limited  to  close  arrest 103  55 

period  of,  limited  by  Arts.  70  and  71 91  51 

powei  given  under  24th  Article  of  War 731  352 

procedure  to  secure  release  from,  Art.  70 778  417 

status  ot  officer  in 96  53 

Arson: 

definition  of,  what  buildings  included 765  388 

intent,  essential  to  crime 765  389 

in  territory  within  exclusive  jurisdiction  of  the  United 

States 765  389 

what  constitutes 765  389 

Articles  of  War,  Appendix  A 459 

amendments  of (note)  11  6 

enactment  of 707  325 

history  of  adoption,  etc 9  6 

meaning  of  word  "officer  "  in,  and  "convictions  "  in.  706  324 
power  of  Congress  to  enact,  derived  from  the  Consti- 
tution   10  6 

separately  considered 705  324 

sources  of 8  5 

Article  1,  officers  to  subscribe  to 708  325 

Article  2,  oath  of  enlistment,  by  whom  administered. .  709  325 
Article  3,  fraudulent  enlistments,  form  for  charges  of 

(see  Forms;  Enlistments) 710  328 

prohibited  enlistments 710  325 

Article  4  (see  Discharge): 

discharge,  effect  of 360  169 

discharge  to   be  given  in  writing,  by   whom 

given 711  329 

Article  5 /false  muster 712  330 

Article  6  (see  Muster),  taking  pay,  etc.,  for  muster.  .  713  331 
Article  7  (see  Returns): 

commanding  officers  to  report  absent  officers..  .  714  332 
returns  to  be  made  by  commanding  officers  of 

troops 714  331 

Article  8,  false  return  of  command,  or  its  arms,  etc., 

penalty 715  ?32 

returns    of    property    to    be    supported    by 

vouchers 715  332 

Article  9,  captured  property 716  333 


546  INDEX 


Articles  of  War  (continued) : 

Article  9,  duty  of  commanding  officer 716     334 

Article  10,  accountability  ot  commanding  officer  to 

colonel  lor  arms,  etc 717     334 

responsibility  for  property 717     334 

Article  11,  furloughs,  when  and  by  whom  granted.  . . .    718     335 
Article  12,  certificate  as  to  absent  officer  or  soldier  at 

muster  (see  Art.  7) 719     335 

Article  13,  penalty  for  false  certificate  of  absence  or 

pay  of  an  officer  or  soldier  (seeArts.  7andl2) 720     335 

Article  14,  making  false  muster  knowingly  (see  Arts.  5. 

6,  12,  and  13) 721     336 

making  false  muster,  evidence  of  two  witnesses 

required,  penalty 721     336 

Article  15,  accountability  jor  suffering  loss,  or  de- 
struction of  public  property 722     336 

suffering  loss  of  public  property  through  neg- 
lect, character  of  neglect 722     337 

Article  16,  ammunition,  wilful  waste  of,  by  soldiers.  .    723     337 
Article  17,  charges  under,  not  to  be  drawn  in  alter- 
native form 119       63 

724     338 


clothing,  title  to  .........................  j  339 

341 
form  for  charges  under,  Appendix  E  .........  494 

limits  of  punishment,  Appendix  D  ...........  485 

selling  or  through  neglect   losing  or  spoiling 

horse,  arms,  clothing,  etc.,  penalty  .........  724     337 

Article    18,    officer    laying    duty    or    imposition    on 

victuals,  etc  ..................................  725     342 

Article    19,    contemptuous    or    disrespectful    words 

against  Congress  and  other  civil  authorities  .......  726     342 

contemptuous  or  direspecttul  language  against 

the  President  and  other  authority  .........  726     342 

disrespectful  words,  what  so  considered  .......  726     340 

Article  20,  disrespect  toward  a  commanding  officer..  .  727     344 
form  for  charges  under,  Appendix  E  .........  495 

limit  of  punishment,  Appendix  D  ............  485 

meaning  of  term  "commanding  officer"  ......  727     344 

nature  of,  how  exhibited  ...................  727     344 

need  not  be  intentional  .....................  727     344 

Article  21,  disobedience  of  orders,  character  of  order, 

how  issued  ....................................  728     347 

disobedience  of  orders  consists  in  what,  pre- 

sumption (see  Disobedience  of  Orders)  .....  728     346 

disobedience  of  orders,  general  prisoner  ......  728     348 

f  286     1  3  5 

disobedience  of  orders,  illegal  order  as  defense  <  -gg     347 

form  for  charges  under,  Appendix  E  .........  495 

meaning  of  phrase  "being  in  the  execution  of 

his  office  "  ..............................  728     345 

meaning  of  term  "superior  officer  "  .........  728     345 


obedience  to  legal  order  as  defense 


f    286 
< 


INDEX  547 

PAR.  PAGE 

Articles  of  War  (c  ,ntinued) ; 

offering  violence  to,  striking,  threatening,  or 

disobeying  order  of  superior  officer 728  344 

orders  delivered  by  staff  officer 728  347 

responsibility  lor  obedience  to  orders  of  supe- 
rior    728  347 

threatening  language 728  346 

use  of  abusive  language  to  superior  officer.  .  .  .   728  346 
Article  22.  beginning,  exciting,  etc.,  mutiny  or  sedition 

(see  Mutiny;  Sedition) 729  348 

Article  23,  mutiny  or  sedition,  how  proved 729  350 

suppression  of  information  as  to  mutiny  (see 

Mutiny;  Sedition) 730  350 

Article  24,  disorders,  frays,  and  quarrels,  authority  to 

suppress 731  351 

arrests,  authority  for,  required  of  whom 731  351 

arrest,  disobedience  of  order  of 731  352 

disorder,  etc.,  character  of 731  352 

form  for  charges  under,  Appendix  E 495 

limits  of  punishment,  Appendix  D 485 

meaning  of  word  "officers,"  exception  to  rule, 

includes  non-commissioned  officers 94  52 

Article    25,   authorizes     only    "prevention    and    re- 
straint"     732  353 

use  of  reproachful  speeches  or  gestures  by  offi- 
cers or  soldiers  prohibited 732  352 

use   of    reproachful    speeches   or    gestures    by 

officer,  purpose  of  arrest 732  353 

Article  26,  challenges,  sending  or  accepting,  to  fight  a 

duel,  prohibited  (see  Duels;  also  Arts.  27,  28) 733  353 

Article  27,  suffering  parties  to  go  forth  to  fight  a  duel, 

prohibited  (see  Duels;  Arts.  26,  28) 734  355 

duty  of  commander  of  guard 734  355 

duty  of  commanding  officer 734  355 

Article  28,  purpose  of  article   (see   Duels;  Arts.  26, 

27) 735  356 

upbraiding  for  refusing  challenge,  prohibited.  .   735  356 
Article  29,  reparation  of  wrong  of  officer  by  regimental 

commander 736  356 

wrong  complained  of,  character  of 736  357 

Article  30  (see  Wrongs;  Regimental  Court  for  doing 

Justice) 89  48 

appeals  under 737  358 

court    organized    by    regimental     commander 

only. 88  48 

jurisdiction  of  court;  not  organized  for  trial  of 

cases 87  47 

meaning  of  words  "any  officer  "/ 737  358 

regimental  court  for  doing  justice j    7^7  ^ 

soldier  wronged  by  officer,  remedy  for 737  357 

Article  31,  absence,  lying  out  of  quarters,  etc 738  358 

who  is  "superior  officer  " 738  358 


548  INDEX 

PAR.     PAGE 

Articles  of  War  (continued) : 
Article  32  (see  Art.  47): 

absence  without  leave,  character  of  absence. .  .  739     359 

finding  of,  as  lesser  offense  on  charge  of  /  298     142 

desertion \  143 

forfeitures  (see  Forfeiture). 

form  for  charges  under,  Appendix  E 496 

limits  of  punishment,  Appendix  D 486 

stoppages  for  (see  Stoppages). 

time  to  be  made  good  on  conviction 739     360 

Article  33,  failure  to  repair  to  place  of  parade,  etc.  .  .  .  740     360 

form  for  charges,  Appendix  E 496 

limits  of  punishment,  Appendix  D <  .— 

4o/ 

necessity  which  excuses,  under 740     361 

Article  34,  absence  from  camp  on  verbal  leave,  limit  of.  741     361 
written  leave  for  absence  from  camp  more  than 

one  mile 741     361 

Article  35,  retiring  to  quarters-  at  retreat,  purpose  of. .  742     362 

Article  36,  hiring  another  to  do  his  duty,  prohibited, 

history 743     363 

Article  37,  hiring  another  to  do  his  duty,  non-commis- 
sioned officer  not  to  connive  at 744     363 

Article  38,  drunkenness  on  duty 745     364 

drunkenness,  character  of 745     366 

drunkenness,  character  of,  caused  by  drug. . .  .  745     366 

drunkenness  defined 745     364 

forms  for  charges  under,  Appendix  E 496 

"found  drunk  "  necessary  to  charge 745     365 

limit  of  punishment,  Appendix  D 487 

meaning  of  words  "on  duty  " 745     364 

Article  39,  duty  of  sentinel  on  post 746     367 

duty  of  sentinel  as  to  escaping  prisoner 746     370 

form  for  charges  under,  Appendix  E 497 

meaning  of  "post  " 746     367 

sentinel,  homicide  by,  in  case  of  escaping  pris- 
oner   746     370 

sentinel,  responsibility  and  duties  of 746     367 

sentinels,  responsibility  for  prisoners  (see  Sen- 
tinels)   746     368 

sentinels,  responsibility  of  officer  for  placing  on 

duty 746     368 

sentinel  sleeping  on  post,  defense 746     368 

sentinel,  quitting  post 746     368 

Article  40,  form  for  charges  under,  Appendix  E 497 

limits  of  punishment,  Appendix  D 487 

meaning  of  "guard  " 747     371 

meaning  of  "urgent  necessity  " 747     371 

quitting  guard,  platoon,  etc 747     371 

Article  41 ,  false  alarms 748     371 

false  alarms,  how  caused 748     371 

purpose  of  article 748     371 

Article  42,  abandonment  of  post 749     372 

casting  away  arms,  etc 749     372 


INDEX  549 

PAR.  PAGE 

Articles  of  War  (continued} : 

cowardice 749  372 

meaning  of  term  "post  " 749  372 

misbehavior  before  the  enemy 749  372 

pillage  or  plunder 749  372 

Article  43,  abandonment  of  post  by  commander  under 

compulsion 750  373 

compelling  commander  to  abandon  or  give  up 

post 750  373 

compelling  commander  to  give  up  post,  animus 

of  act 750  373 

compelling  commander  to  give  up  post,  pen- 
alty   750  373 

constraint  of  commander 285  135 

Article  44,  "countersign  " 751  373 

making  known  watchword 751  373 

making  known  "parole  " 751  374 

specific  intent  not  required 751  374 

"watchword,"  meaning  of  term 751  374 

Article  45,  application  of  article 752  374 

enemy,  who  meant  by  the  term 752  374 

forbidden  relations  with  enemy  (see  Art.  46) ....  752  374 

relieving  the  enemy 752  374 

"whosoever,"  meaning  of  word 752  375 

Article  46,  correspondence  with  enemy 753  375 

enemy,  meaning  of  the  word 752  374 

forbidden  relations  with  the  enemy  (see  Art. 

45) 753  375 

giving  intelligence  to  the  enemy 753  375 

Article  47,  desertion  (see  Desertion;  Pleas) 754  375 

desertion,  acquitted  of,  effect 353  166 

desertion,  finding  of  lesser  included  offense.  .  .  .  298  142 

desertion,  intent  not  to  return  essential 754  376 

desertion,   limits  of  punishment   for,   Appen- 
dix D 484 

desertion  of  minor 754  378 

desertion  of  officer 754  378 

desertion,  previous  convictions  of 306  145 

desertion,  reward  for  deserter,  how  paid 754  376 

/  ••  o/>  QA 

desertion,  statute  of  limitations <  1Qft  OQ 

(  i sy  yo 

desertion,  stonnages  (see  Stoppages) 754  377 

desertion,  liability  for 755  379 

desertion,  time  lost,  to  be  made  good j  lj^  jS 

forfeiture  for  (see  Forfeitures) 754  377 

form  for  charges  under,  Appendix  E 497 

Article  48,  deserter,  liability  to  trial  after  term  of  en- 
listment   755  378 

deserter,  restoration  to  duty  without  trial.  .....  755  379 

deserter,  to  make  crood  time  lost  (see  Art.  47). .  754  377 

deserter,  waiver  of  liability 755  379 

Article  49,  officer  leaving  post  before  acceptance    of 

resignation,  "intent  " 756  380 


550  INDEX 


PAR.  PAGE 

Articles  of  War  (continued) ; 

officer  resigning  does  not  thereby  separate  him- 
self from  service 756  380 

officer  resigning  not  to  leave  post  till  accept- 
ance    756  379 

Article  50,  duty  of  officer  or  soldiei  as  to  soldier  discov- 
ered in  another  regiment 757  380 

enlistment  in  another  regiment,  etc.,  not  void 

but  voidable 757  380 

enlistment    in   another  regiment    pnma  facie 

evidence  of  desertion 757  380 

officer  not  reporting  deserter,  penalty 757  381 

soldier  not  discharged,  enlistment   in  another 

regiment 757  380 

Article  51,  advising  or  persuading  officer  or  soldier  to 

desert 758  381 

desertion,  advising,  etc.  (see  Art.  47) 758  381 

form  for  charges  under,  Appendix  E 498 

limits  of  punishment,  Appendix  D 488 

offense,  by  citizen,  punishable  by  U.  S.  Courts.  .  758  381 

Article  52,  attendance  at  divine  service 759  381 

behavior  at  divine  service 759  382 

Article  53,  use  of  profane  oath  or  execration  by  officer, 

penalty 760  382 

use  of  profane  oath  or  execration  by  soldier, 

penalty '. 760  382 

f    531  239 

|    532  239 

Article  54,  boards  convened  under -J    533  239 

|    534  240 

I    535  240 
board  convened  under,  members  act  under  oath 

of  office 535  240 

board  convened  under,  organization  of 535  240 

citizens,  evidence  of 533  240 

citizens,  injuries  to 761  382 

complaint,  how  made 533  239 

duty  of  commanding  officer 761  382 

preservation  of  order,  in  garrison  and   on  the 

march 761  382 

procedure  under 533  239 

purpose  of  article 531  239 

reparation  made  for  injury  to  person  or  prop- 
erty    531  239 

stoppage  under,  purpose  of  (see  Stoppage).  .  .  .  534  240 
Article  55,  behavior  of  officers  or  soldiers  in  quarters 

and  on  the  march 762  383 

defense,  orders  as 762  383 

good  order  to  be  maintained  in  quarters  and 

on  the  march 761  382 

property,  authority  for  destruction  of,  by  whom 

given 762  383 

property,  wanton  or  malicious   destruction  of, 

penalty 762  383 


INDEX  551 

PAR.  PAGE 

Articles  of  War  (continued) : 

waste,  commission  of,  prohibited 762  383 

Article  56,  applicable  in  foreign  parts 763  383 

piotection  of  Article,  not  limited  to  "camp  " .  .  763  384 
violence  to  persons  carrying  provisions,  by  offi- 
cers or  soldiers 763  383 

Article  57,  applicable  in  loreign  parts  or  territory  in 

rebellion 764  384 

Safeguard,  forcing,  penalty 764  384 

saleguard,  knowledge  essential  to   convict  of 

violation  of 764  384 

safeguard,  meaning  ot  word 764  384 

safeguard,  offense,  gravity  of 764  384 

Article  58,  applicable  in  time  of  war,  insurrection,  or 

rebellion 765  385 

arson  (see  Arson) 765  388 

assault  and  battery  (see  Assault  and  Battery).  765  393 
assault   and   battery   with    intent   to  commit 

rape 765  395 

assault  and   battery  with   intent  to  kill   (see 

Assault  and  Battery) 765  393 

burglary  (see  Burglary) 765  387 

form  for  charges  under,  Appendix  E 498 

homicide 765  390 

jurisdiction  ot    courts-martial  over  crimes  in 

time  of  war,  etc 765  385 

larceny  (see  Larceny) 765  385 

laws  of  the  land,  meaning  ot  term 107  57 

limits  of  punishment 765  396 

local  laws  of  foreign  country,  not  applicable..  .  765  396 

manslaughter  (see  Manslaughter) 765  390 

mayhem  (see  Mayhem) 765  389 

murder  (see  Murder;  Homicide) 765  392 

offenses  punishable  by  courts-martial  in  time  J  316  150 

of  war \  765  385 

rape  (see  Rape) 765  394 

robbery  (see  Robbery;  Embezzlement) 765  386 

wounding  by  shooting  or  stabbing,  etc 765  394 

Article  59,  applicable  to  officers  or  soldiers  only 766  396 

application  to  be  made  to  commanding  officer 

tor  arrest  of  officer  or  soldier  accused  of  crime.  766  396 

arrest  of  officer  or  soldier  for  capital  crime  or  /  107  57 

offense  against  citizens \  766  396 

civil  authorities  to  apply  to  commanding  officer 

for  arrest  of  officer  or  soldier 766  396 

civil  power  supreme  in  time  of  peace 766  397 

delivery  of  military  offenders  to  civil  authority.  766  396 

does  not  apply  to  service  ot  subpoena 110  59 

laws  of  the  land,  meaning  of  term 107  57 

not  applicable  to  civilians  employed  or  living 

at  a  military  post 1 10  58 

not  applicable  to  offenses  committed  in  place 

under  exclusive  jurisdiction  of  the  U.  8 110  58 

officer  and  soldier  amenable  to  Territorial  laws .  766  397 


552  INDEX 

PAE.  PAGE 

Articles  of  War  (continued) ; 

power  of  State  and  U.  S.  authorities 766  397 

soldier  in  confinement  or  arrest  not  to  be  sur- 
rendered     Ill  59 

Territorial  statutes  operative  on  military  reser- 
vations therein 766  397 

Article  60,  amended,  Appendix  C.  % 4b& 

blank  receipts  prohibited 767  403 

certificate  of  receipts  of  property,  responsi- J    767  3b8 

bility I    767  403 

claims,  false  01  fraudulent. , -j    ™  !™ 

conspiracy  to  defraud 767  398 

duplication  of  pay  accounts 767  400 

embezzlement    definition  of  (see  Embezzle-/    767  399 

ment) [    767  404 

form  lor  charges  under.  Appendix  E 498 

offenses  under,  intent |  ^7  398 

property  delivered,  not  less  than  receipted  j  767  398 

for. ;•.•••; I  76 /  402 

property,  receiving  in  pledge  U,  S.  (see  Prop-  J  767  399 

erty).  \  767  407 

short  payments |  ?67  398 

(       7AT  QOQ 

stealing  property  of  U.  S.  (see  Larceny).  .  .  .  <     ';!'  j^j 

J    767  398 

1    763  399 

/    767  398 


1    767     401 


false  oath  to  claim  (see  Perjury) 

false  or  fraudulent  statement.  . 

I  i 67     400 

false  swearing 767     400 

forging  or  counterfeiting  signatures  to  vouchers 

(see  Forgery;  Counterfeiting) 767     398 

form  for  charges  under,  Appendix  E 498 

frauds,  embezzlements,  etc 767     398 

funds,  misappiopriation  of <    i^L 

limits  of  punishment,  Appendix  D 488 

Article  61,  charge  under,  in  addition  to  offense  under 

specific  article 117       63 

conduct  unbecoming  an  officer  and  a  gentleman, 

nature  of  offense 768  •  409 

finding  of  lesser  kindred  offense  under  Art.  62  {    %~[l 

{    768     410 

form  foi  charges  under,  Appendix  E 499 

offense,  character  of,  as  affecting  military  ser- 
vice   768     410 

offense  cognizable  under,  determined  by  court..  54       29 

offense  under,  what  constitutes 768     410 

sentence,  valid  only  as  to  dismissal 768     410 

Article  62,  conduct  to  the  prejudice  of  good  order  and 

military  discipline 769     411 


INDEX  553 

PAR.  PAGE 

Articles  of  War  (continued): 

capual  crime  not   chargeable  under,  even  in 

lesser  degree 769  411 

crimes,  as  distinguished  from  neglects  and  dis- 
orders. . . 769  411 

disorders,  include  what 7C9  412 

drunkenness  and  disorderly  conduct,  conviction 

of,  by  civil  authorities 769  412 

finding  of  lesser  kindred  offense  under 297  142 

forms  for  charges  under,  Appendix  E 500 

limits  of  punishment,  Appendix  D 488 

neglect,  definition  of 769  412 

purpose  of  Article 769  411 

Article  63,  camp-followers,  include  whom 770  413 

jurisdiction  over,  not  authorized  in  time  of.  ... 

peace 770  414 

persons  serving  with  armies  in  the  field,  include 

whom,  when  punishable 770  413 

retainers  to  camp,  e^c.,  include  whom 770  413 

Article  64,  all  troops  in  U.  S.   service  subject  to]       *,  oq 
Articles  of  War  at  all  times  and  in  all  places  (see  }•    ~2r 

Jurisdiction) .  J    771  414 

military  offenses  not  territorial 771  414 

Article  65,  arrest  and   confinement  of  officers  (see  /      93  52 

Arrest) \    772  414 

Article  66,  arrest  and  confinement  of  soldiers   (see  /    104  55 

Confinement;  Punishment;  Sentence) \    773  414 

Article  67,  receiving  and  keeping  prisoners,  duty  of 

officers  commanding  guard  (see  Prisoners) 774  414 

Article  68,  duty  of  officer  in  charge  of,  to  report  pris- 
oners (see  Prisoners) 775  415 

Article  69,  officer  in  charge  of,  not  to  release  or  suffer 

prisoner  to  escape 776  415 

Article  70,  arrest  and  confinement  of  officer  or  soldier 

before  trial,  duration 777  415 

remedy  for  arrest  or  confinement  beyond  limit. .   777  416 

Article  71,  arrest,  duration  of,  charges  not  served,  (      91  51 

release  from |    778  416 

charges  to  be  furnished  officer  in  arrest 778  416 

meaning  of  words  of  Article 778  416 

officer  not  authorized  to  release  himself 778  417 

Article  72,  accuser  or  prosecutor,  meaning  of  term  .  .  .   779  417 

convening  authority,  court-martial  (see  Con- f      34  18 

vening  Authority) \    779  417 

Article  73,  commander  of  division  or  separate  brigade.  430  196 
convening  authority  as  accuser  or  prosecutor 

(see  Art.  72) 780  418 

convening  authority,  courts-martial  in  time  /      41  21 

of  war \    780  418 

Article  74,  judge-advocate,  by  whom  appointed  (see 

Judge-advocate) 781  418 

convening  authority,  of  court-martial  to  ap-  f    148  76 

point  judge-advocate \    781  418 


554  INDEX 

PAR.    PAGE 

Articles  of  War  (continued) : 

Article  75,  number  of  officers  to  constitute  general!  -.to       fiq 

court-martial  (see  Courts-martial) j  7^9     410 

quorum 46       24 

Article  76,  commanding  officer  to  report  lack  of  offi- 
cers for  court-martial 783     418 

court-martial  convened  at  nearest  post,  etc., 

when 783     418 

number  of  officers  for  general  court-martial, 

how  secured  (see  Courts-martial) 783     418 

Article  77,  competency  of  members  (see  Courts-mar- 
tial)   784     419 

officers  of  regular  army  not  to  sit  on  courts  for }  ,-..        9« 

trial  of  members  "of  other  forces"    (see  }•  7o4     d*q 

Courts-martial;  Militia;  Volunteers) J 

Article  78,  command,  marines  serving  with  the  regular 

troops 785     419 

courts-martial,  composition  of,  when  marines 
are  serving  with  the  army  (see  Courts-mar- 
tial)  

marine  corps,  service  with  army 785     419 

Article  79,  officer  not  to  be  tried  by  inferior  in  rank  !  ,  .^       _| 

if  it  can  be  avoided j  «0^      .( £ 

J  /86     419 

Article  80,  repeal  of,  Appendix  B 481 

Article  81,  commanding  officer  of  regiment  or  corps]  ~~       ,9 

may    appoint    courts-martial     (see    Regimental  \  7ftft      ,1Q 

Courts-martial) J 

regimental    courts-martial,    convening    au-  /  77       42 

thority \  788     419 

regimental  courts,  commander  of  corps,   en- 
gineer, ordnance,  or  signal,  may  convene ....  77       42 

regimental  courts-martial,  composition  of.  ..I  7™      .-.^ 

regimental  courts-martial,  jurisdiction <  7Q~      ,9~ 

regimental  courts-martial,  number  of  members.  788     419 
Article  82,  garrison  court-martial,  constitution,  num- 
ber of  members  (see  Garrison  Courts-martial) 789     419 

garrison  courts-martial,  convening  authority  j  ygQ     41Q 

garrison  courts-martial,  jurisdiction 76       41 

garrison  courts-martial,  when  and  where  con- 
vened   76       41 

Article  83,  amended,  Appendix  C 483 

inferior  courts,  capital  offenses  not  triable  by  .  .  790     420 

inferior  courts,  jurisdiction 790     420 

I                         inferior  courts,  punishing  power  of j  7QQ     49Q 

limits  of  punishment  by  inferior  courts-martial.  790     420 

summary  court,  expenses  of  witnesses,  etc 790     421 

Article  84,  all  members  of  courts-martial  to  take  oath 

(see  Courts-martial;  Oath) 791     421 


INDEX  555 

PAR.  PAGE 

Articles  of  War  (continued) : 

meaning  of  words  "court  of  justice  " 791  422 

oath  of  members  of  courts-martial,  adminis- 
tered by  judge-advocate 791  421 

oath  of  members  of  court-martial,  obligation  j    791  421 

of 1    791  422 

oath  to  be  administered  to  all  members,  in  each 

case 791  422 

Article  85,  oath  of  judge-advocate,  by  whom  adminis- 
tered (see  Judge-advocate) 792  422 

oath  of  judge-advocate,  obligation  of  (see  Art. 

84) 792  422 

Article   86,   contempts   of   courts-martial    (see    Con- 
tempts)    793  423 

disturbance  of  proceedings,  or  disorder  before 

courts-martial 793  423 

69  37 

Article  87,  behavior  of  members  of  courts-martial.  .  -     ^  1^ 

794  423 

Article  88,  challenges  of  members  of  courts-martial  /    166  86 

(see  Challenges) \    795  423 

challenge,  statutory  right,  essential  to  validity 

of  proceedings 795  423 

Article  89,  arraignment  of  prisoner,  standing  mute,  or 

answering,  foreign  to  purpose 796  423 

standing  mute  from  cause  other  than  obstinacy 

or  design 209  105 

Article  90,  judge-advocate  appointed  by  convening 

authority  (see  Art.  74;  Judge-advocate) 797  424 

judge-advocate  as  counsel  for  accused j    igZ  |*. 

judge-advocate,  duties  of  (see  Judge-advocate).   148  76- 
judge-advocate  to  prosecute  cases  in  name  of 

United  States 797  423; 

Article  91  (see  Depositions) 251  122: 

(    253  123: 

deposition,  how  prepared \    254  123: 

I    257  124 

deposition  not  used  in  capital  cases 798  424 

deposition,  when  taken 798  424 


f    238     119 


Article  92,  oath  of  witnesses  (see  Oath) \  239  119 

[  799  425 

oath,  by  whom  administered 799  425 

oath,  not  necessary  second  time  in  same  case .  .  799  425 

Article  93,  continuance,  grounds  for 800  426 

continuance    of    courts-martial    cases     (see  /  176  91 

Courts-martial) \  800  425 

continuance,  court  decides  as  to  what  const  i- 

stutes  "reasonable  cause  "  for 800  425 

Article  94,  repealed,  Appendix  C 482 

Article  95,  order  of  voting  by  courts-martial 370  173 

Article  96,  death  sentence,  vote  required  for 312  149 


556  INDEX 


Articles  of  War  (continued) : 

Article  97,  sentence  to  penitentiary 804  426 

character  ot  offenses  punishable  under 804  426 

penitentiary,  sentence  to,  authorized  when!    |J? 

(see  Punishment;  Sentence) ] 

l_    e,04  4.Jo 
penitentiary,     sentence,    not     authorized    for 

purely  military  offenses 804  427 

f    368  171 

Article  98,  forbidden  punishments • \    369  171 

(    805  427 

branding,  marking,  or  tattooing  (see  Punish-/    368  171 

ments) \    805  427 

Article  99,  discharge  or  dismissal  of  officer 806  427 

discharge  or  dismissal  of  officer  by  sentence  of 

court-martial  only,  in  time  of  peace 806  427 

dismissal  of  officer  by  executive  order  in  time  J      66  34 

of  war \    335  160 

dismissal  of  officer  by  executive  order,  right  to 

demand  trial 66  34 

dismissal  of  officer,  when  operative 806  428 

Article  100,  dismissal  of  officer  for  cowardice  or  fraud, 

sentence  in  case  of 807  428 

dismissal  for  "cowardice  or  fraud,"  what  in- 
cluded    807  428 

publication  of  sentence 807  428 

f    337  161 

Article  101 ,  suspension  of  officer  from  rank  and  com-  !    338  161 

mand,  etc.  (see  Officers;  Punishments) |    339  162 

[    808  428 

f      QQV  1 A1 

suspension  from  rank  or  command,  effect  of.  <     ooq  1^9 

suspension  from  rank,  loss  of  files 341  162 

f    337  161 

suspension  of  pay  and  emoluments \    340  162 

[    808  428 
Article   102,  applies  to  inferior  as  well  as    general 

courts-martial '. 809  429 

no  person  to  be  held  a  second  time  for  the  f    194  99 

same  offense \    809  429 

previous  trial,  by  civil  court 195  100 

previous  trial,  offense  charged 809  429 

f    194  99 

"tried,"  meaning  of  word •{     196  101 

[    809  429 

Article  103,  statute  of  limitations  (see  Statute  off    186  96 

Limitations;  Pleas) \    810  429 

f    186  96 

statute  of  limitations, desertion(see  Desertion)  ^     187  97 

I     193  99 
statute  of  limitations,  duty  to  prosecute  within 

reasonable  time 810  430 

statute    of    limitations,    fleeing    from    justice. 

what  constitutes.    .                                            .    189  98 


INDEX  557 

PAR.  PAGE 

Articles  of  War  (continued) : 

statute  of  limitations,  liability  to  trial  after 

expiration  of  service 810  430 

statute  of  limitations,  matter  of  defense  to  be 

pleaded .  .  187  97 

statute  of  limitations,  not  applicable  to  inferior 

courts 191  99 

statute  ot  limitations,  offense  concealed  no  im- 
pediment to  trial 810  430 

statute  of  limitations,  plea  of  (see  Pleas) 190  98 

Article  104,  approval  of  sentence  of  court-martial,  by  /  428  195 

whom  made  (see  Reviewing  Authority) \  430  196 

approval  of  sentence  of  court-martial  neces- ]  428  195 

sary  before  effective \  811  430 

approval  of  sentence  only  necessary 432  197 

reviewing  authority,  action  taken  by |  ^4  jgg 

(  437  199 

Article  105,  death,  sentence  of,  by  whom  confirmed  J  449  201 


812  430 

death ,  sentence  confirmed  by  President  before  ]     ,07  i  QQ 

execution,  except  certain  crimes  in  time  of  \    ^^  431 

war I 

437  199 


death  sentence,  execution  of s    ^^     431 

death  sentence,  guerrilla,  in  time  of  war 812     431 

death  sentence  in  time  of  war,  confirmation]     ,37     -.QQ 
and  execution  of  (see  Deserter:  Spies;  Mur-  \    010     A^i 

der;  Mutiny) J     812 

death  sentence  not  given  deserters  except  in 

time  of  war  (see  Desertion;  Art.  47) 754     375 

Article  106,  dismissal  of  officers  (see  Dismissal;   Offi- 
cers) . 

dismissal  of  officer  in  time  of  peace <!    o^o     401 

dismissal  of  officer,  no  legal  disability  attached.  813     432 

dismissal  of  officer,  takes  effect  when 813     431 

dismissal  of  officer,  to  be  confirmed  by  Presi- 
dent   813  •  431 

Article  107.  dismissal  of  officer,  approved  by  com-1     ,,,      2Q1 
mander  of  division  or  separate  brigade,  to  be  con-  j-    g^ .     432 

firmed j 

dismissal  of  officer,  approval  of  commander  of  ]     **  +     901 
division  or  separate  brigade,  before   con-  \    ^  .     ^y 

firmation,  necessary J 

Article  108,  all  sentences  respecting  general  officers]     .~~     2Qi 
to  be   confirmed  by   President    (see    Reviewing  \    C1 K     .00 

Authority) j    ' 

purpose  of  article 815     433 

Article  109,  execution  of  sentence  of  courts-martial.  1    436     199 

(see  Reviewing  Authority) J    816     433 

sentences  not  requiring  confirmation  by  Presi- 
dent or  commanding  general  in  the  field  or 
commander  of  department,  by  whom  exe- 
cuted   816  433 


558  INDEX 


Articles  of  War  (continued) 

sentences,  when  to  be  confirmed  and  carried 

into  execution  by  officer  ordering  court  .....   816     433 

Article  110,  repeal  of,  Appendix  B  .................  481 

Article  111,  suspension  of  execution  of  sentence  of]     ,  ._ 
death  or  dismissal  (see  Death;   Dismissal;   Sen-  }•    • 
tence)  ......................................  j    818     434 

suspension  of  sentence,  procedure  under  ......   818     434 

Article  1  1  2,  pardon  or  mitigation  of  punishment  (see  J    jfijj     ^f 
Pardon;  Punishments)  .......................  j     ™     20b 

pardon  or  mitigation,  grounds  for  need  not  be 

stated  ..................................   819     434 

power  to  pardon  or  mitigate  cannot  be  delegated  819     434 
power  to  pardon  or  mitigate,  not  extending  to 

death  or  dismissal  .......................   819     434 

Article  1  13,  disposition  of  records  of  courts-martial.  ..  422     193 
forwarding  proceedings  of  courts-martial  .....    820     434 

Article  114,  application  for  copies  of  proceedings  of 

general  courts-martial  ..........................   423     193 

accused  entitled  to  copy  of  record  of  trial  .....   821     435 

application  for  copy  of  record  of  court-martial 

by  persons  not  parties  ....................   821     435 

Article  115,  court  of  inquiry,  application  for,  by  whom 

made  .......  .....  ............................   822     435 

court  of  inquiry,  construction  of    word  "de- 

mand "  (see  Court  of  Inquiry)  ............   462     214 

court  of  inquiry,  purpose  and  authority  .  .  .  .  j    ^2     435 
Article  116,  court  of  inquiry  (see  Court  of  Inquiry). 

court  of  inquiry,  composition  of  ...........  |    ^3     435 

Article  117,  court  of  inquiry  (see  Court  of  Inquiry). 

court  of  inquiry,  recorder,  duties  of  ..........   473     217 

court  of  inquiry,  oath  of  members  and  re-  (    460     213 
corder  (see  Court  of  Inquiry)  ............  \    824     436 

Article  118,  court  of  inquiry  (see  Court  of  Inquiry). 

court  of  inquiry,  oath  of  witnesses  before.  . 


court  of  inquiry,  power  to  summon  and  ex-J  ,y^  0.~ 

amine  witnesses  .......................  j  ^  436 

court  of  inquiry,  procedure  of  ...............  464  214 

Article  119,  court  of  inquiry  (see  Court  of  Inquiry). 

(  460  213 

court  of  inquiry,  opinion  when  given  by  .....  \  474  218 

[  826  436 

court  of  inquiry,  purpose  of  .................  460  21& 

Article  120,  court  of  inquiry  (see  Court  of  Inquiry). 

court  of  inquiry,  authentication  of  proceed-  /  474  217 

ings  ..................................  t  827  437 

court  of  inq   iry,  record  of  ................  •>  .~.  ^-i" 

court  of  inq   i^y,  record  of,  action  on  .........  476  218 


INDEX  559 

PAR.  PAGE 

Articles  of  War  (continued) : 

Article  121,  court  of  inquiry  (see  Court  of  Inquiry). 

court  of  inquiry,  proceedings,  when  admissible 

as  evidence  (see  Evidence) 828  437 

Article  122,  command,  succession  to,  when  different 

corps  unite 829  437 

"corps  of  the  army,"  meaning  of  term 829  438 

command,  succession  to 829  438 

when  operative 829  438 

Article  123,  volunteers,  commissions  of  officers  of  (see 

Volunteers) 830  438 

(      51  26 

volunteers,  court  for  trial  of,  how  composed. . .  \     134  70 

I    830  439 

volunteers  governed  by  same  rules  as  regular  /    830  438 

army \    830  439 

volunteers,  to  whom  term  applies 830  439 

Article   124,  militia,   called  into  service,  how    (see 

Militia) , 831  441 

militia,  conscription 831  443 

f      51  27 

militia,  courts  for  trial  of -I     134  70 

[    831  442 
militia,  emergency  for  call  determined  by  the 

President 831  442 

militia,  organization <    g^l  ^ 

militia,  pay  and  allowances 831  442 

militia,  term  of  service 831  441 

militia,  when  subject  to  military  law 831  442 

rank  and  grade  of  militia  officers <    ^01 

Article   125,  death  of  officer,  administration  upon 

effects  (see  Officer) 832  444 

death  of  officer,  board  of  officers  to  inventory 

public  property 832  444 

death  of  officer,  disposition  of  effects 832  444 

death  of  officer,  disposition  of  remains 832  445 

death  of  officer,  duty  of  major  or  second  officer 

in  command 832  444 

death  of  officer,  estate,  disposition  of 832  444 

death  of  officer,  inventory  of  property 832  444 

death  of  officer,  procedure 832  444 

death  of  officer,  property  to  be  acted  upon.  .  .  .   832  445 
Article    126,    death     of    soldier,    administration    on 

effects  (see  Enlisted  Men) 833  446 

death  of  soldier,  duty  of  commanding  officer.  833  445 

death  of  soldier,  disposition  of  effects 833  446 

death  of  soldier,  disposition  of  remains 833  445 

death  of  soldier,  inventory  of  effects 833  445 

death  of  soldier,  procedure 833  445 

death  of  soldier,  property  to  be  accounted  for. .   833  447 
Article    127,   accountability  for  effects    of  deceased 

officer  or  soldier  (see  Officer) 834  447 


560  INDEX 

PAR.  PAGE 

Articlss  of  War  (continued) : 

officer  responsible  not  to  leave  post  before  ac- 
counting   834  447 

Article  128,  articles  of  war  to  be  read  and  published  to 

troops. 835  447 

failure  to  make  publication,  and  consequent 

ignorance,  as  a  defence 835  448 

purpose  of  article 835  448 

Assault  and  Battery : 

deiiniiion  (see  Art.  58) 765  393 

intent 765  394 

with  intent  to  commit  rape,  ''intent"  to  be  proved 

(see  Art.  58) 765  395 

with  intent  to  commit  rape  (see  Art.  58) 765  395 

with  intent  to  kill,  "intent "  to  be  proved  (see  Art. 

58) 765  394 

Assisting  the  Enemy  (see  Arts.  45  and  46;  Enemy) /  ^  |/4 

Attachment  for  Witness  (see  Writ  of  Attachment): 

form  for  \varrant ,  Appendix  E 525 

power  of  judge-advocate  to  issue 221  110 

f  225  112 

release  from,  on  habeas  corpus  (see  Habeas  Corpus) .  •{  226  112 

I  227  113 

service  of  writ,  execution,  force  used  in 222  111 

writ  of,  for  witness,  when  and  how  executed <  292  ^ 

Attorney  and  Client: 

confidential  communications  (see  Confidential   Com- 
munications; Evidence;  Witnesses) 632  287 

confidential  communications,  include  clerk,  etc 632  287 

Attorney=general  (see  Opinions): 

force  of  opinions  and  when  binding 24  12 

Authentication  of  Record  (see  Record): 

board  for  examination  for  promotion 519  235 

court  of  inquiry 474  218 

court-martial 409  187* 

retiring  board 519  235 

Autrefois  Acquit  (see  Art.  102;  Pleas) 194  99 

Averments  (see  Charges  and  Specifications) 117  62 

Bail: 

allowed  in  civil  arrest,  not  in  military 90  50 

by  whom  admitted 840  454 

excessive,  not  to  be  required 840  455 

offenses  against  United  States,  admitted  in  what  cases.  840  454 

offenses  against  United  States,  by  whom  fixed 840  454 

penalty  for  breach  of  military  arrest 102  55 

when  admitted  in  criminal  cases. 840  454 

Ball  and  Chain  (see  Punishments) |  f^  ]^ 


INDEX  561 

PAR.  PAGE 

Battery : 

definition  of 765  393 

force  used,  intent 765  394 

Behavior: 

at  divine  service  (see  Art.  52) 759  382 

in  quarters  and  on  the  march  (see  Art.  55) 762  383 

of  members  of  courts-martial  (see  Art.  87) 794  423 

Bias  (see  Challenges) 171  89 

Blank  Receipts  (see  Art.  60) 767  403 

Boards : 

character,  purposes  for  which  convened,  etc 525  237 

for  special  purposes 526  ^37 

oath  of  members 528  238 

oath  of  witnesses,  by  whom  administered,  etc 529  238 

organization,  purpose,  procedure  of 527  238 

record  of,  made  by  whom 530  238 

reports  not  effective  till  approved 530  238 

examination  for  promotion,  approval  of  report 524  236 

examination  for  promotion,  challenges  of  members.  ..  518  234 

examination  of  officers  for  promotion,  composition  /  515  233 

of,  etc \  516  233 

examination  for  promotion,  evidence  before 521  235 

examination  for  promotion,  findings 524  236 

examination  for  promotion,  organization  and  pro-  /  517  234 

cedure. \  519  235 

examination  of  officers  for  promotion,  quorum 518  235 

examination  for  promotion,  record,  to  be  approved..  .  524  236 

examination  for  promotion,  witness,  how  secured.  .  .  .  521  235 
for  inventory  of  public  property  in  charge  of  deceased 

officer 832  444 

in  case  of  desertion  (see  Surveying  Officer) 546  245. 

retiring  (see  Retiring  Boards) 486  223 

of  survey  (see  Surveying  Officer). 

to  determine  character  of  enlisted  men 526  237 

under  54th  Article  of  War,  composition .  535  240 

under  54th   Article   of  War,   duty  of    commanding 

officer 531  239 

number  of  members,  etc 535  240 

procedure 533  239 

purpose 531  239 

reparation  for  injury  to  property,  etc 532  239 

stoppage,  purpose 534  240 

Branding: 

prohibited  (Art.  98)  (see  Punishments) 805  427 

Breach  of  Arrest  (see  Art.  65) 103  55 

penalty  (Art.  65) 772  414 

unintentional,  constructive 103  55 

Brief: 

filed  with  return  to  writ  of  habeas  corpus  issued,  in 

case  o:  minor,  by  U.  S.  Court,  Appendix  E 537 


562  INDEX 


Brigade  (Art.  73): 

what  constitutes 42  22 

Burden  of  Proof   (see  Evidence) 604  273 

alibi-  ••••-. •  •  •  •: •••::'••"  289  13? 

arms,  clothing,  etc.,  found  in  possession  of  civilian.  .  .   724  341 

challenge  ot  members  of  courts-martial 173  99 

how  determined,  in  criminal  cases 604  274 

identification  of  documents  introduced  in  evidence.  .  .   567  257 

ignorance  or  mistake  of  fact - 284  134 

ignorance  of  published  orders 728  348 

in  criminal  cases,  on  state 605  274 

insanity  as  a  defense 274  132 

plea  in  abatement,  prosecution  entitled  to  reply   to, 

etc 184  96 

Burglary : 

breaking,  necessary  to  commission  (see  Art.  58) 765  387 

building  entered,  when 765  388 

constructive,  when 765  387 

definition  of,  at  common  law 765  387 

execution  of,  when  complete 765  387 

form  of  charge  for,  Appendix  E 501 

intent  to  commit  felony 765  387 

time  of  commission.  .                                                   ,  .  {    J^f  ool 

I    765  388 

Cadets: 

dismissal  for  hazing 336  161 

part  of  army 58  31 

status  of,  in  army 59  31 

subject  to  the  rules  and  articles  of  war 706  324 

trial  and  sentence  by  court-martial |     ,?§  202 

trial  by  summary  court,  not  subject  to 59  31 

Camp: 

absence  from,  by  verbal  permission,  limit,  Art.  34  ...   741  362 

alarms  in,  Art.  41 748  371 

lying  out  of,  Art.  31 738  358 

retainers  to,  who  included  in  term,  Art.  62 770  413 

Camp  Followers: 

who  included  in  term,  Art.  63 770  413 

Capacity : 

criminal  (see  Defenses) 265  128 

Capital  Crimes: 

not  triable  by  inferior  courts,  Art.  62 769  411 

triable  by  courts-martial  in  time  of  war,  Art.  58   (see 

Arts.  58  and  62) 765  385 

Capital  Sentences: 

confirmation  of  (see  Sentences) |    ^12  439 

execution  of,  Art.  105 812  430 

suspension  of,  Art.  Ill 818  434 


INDEX  563 

PAR.  PAGE 

Captured  Property  (see  Property): 

belongs  to  United  States  .........................   716  334 

buying  and  selling  of,  prohibited  ..................   838  450 

disposition  of  ...................................   838  450 

duty  of  officer  in  possession  .......................   838  450 

retaining,  trading,  or  dealing  in,  prohibited  .........   838  450 

Cashiered  : 

synonymous  with  dismissal  .......................   715  333 

Certificates  : 

false,  Art.  60  (see  False  Certificates)  ...............   767  398 

ot  absence,  monthly  report,  Art.  7  .................   714  331 

of  absence  at  muster,  Art.  12  .....................   719  335 

Challenges  : 

board  of  examination,  members  of  (see  Boards).  .  .'.  .   518  234 

i       1  ftfi 

court-martial  members,  Art.  88 


court-martial  members,  accused  entitled  to,  Art.  88  <     ^g^  ^3 

i       1  A7  ft7 

court-martial  members,  action  of  court  on  ........  <     O^Q  101 

court-martial  members,  burden  of  proof  to  sustain.  .  .    173  90 

court-martial  members,  classification  of  ............    168  87 

court-martial  members,  determined  in  closed  court,  j  167  87 

challenged  member  withdrawing  ...............  }    389  181 

court-martial  members,  how  made,  and  determined  J  166  86 

by  court  .........  ;  ..........................  \    795  423 

court-martial  members,  grounds  of  .................    171  88 

court-martial  members,  ground  for,  accuser  or  prose- 

cutor ........................................   169  88 

court-martial  members,  ground  for,  interest  in  result 

of  trial  .......................................    169  88 

court-martial  members,  ground  for,  intimate  personal 

relations  ......................................   171  89 

court-martial  members,  ground  for,  material  wit- 

ness .........................................   171  89 

court-martial  members,  ground  for,  member  interior 

in  rank  to  accused  .............................    140  72 

court-martial  members,  ground  for,  member  of  court 

of  inquiry  or  of  regimental  court  for  doing  justice.  .  169  87 
court-martial  members,  ground  of,  member  of  court- 

martial  on  former  trial  ot  case  ...................    169  88 

court-martial  members,  ground  of,  participation  in 

former  trial  involving  same  question  .............    171  89 

court-martial  members,  ground  of,  personal  prejudice 

or  hostility  ...................................    171  89 

court-martial  members,  ground  of,  previous  investiga- 

tion and  report  on  case  .........................    169  88 

court-martial  members,  ground  ot,  previous  opinion 

formed  or  expressed  ...........................    171  88 

court-martial  members,  judge-advocate  entitled  to..  .    172  90 

judge-advocate  not  subject  to  .....................    149  76 

member  challenged  may  reply  .....................    167  86 

member  withdraws  if  it  is  sustained  ................  389  181 


564  INDEX 


PAR.  PAGE 

Challenges  (continued) : 

one  at  a  time  and  for  cause  stated 388  180 

opportunity  for,  must  be  given 387  180 

opportunity  given  must  appear  on  record 795  423 

peremptory,  not  allowed 166  86 

principal,  definition  of 169  87 

principal,  if  sustained,  member  excused 170  88 

principal,  what  constitutes,  cause  for 169  87 

regimental  courts  lor  doing  justice,  members 87  47 

retiring  board,  members  subject  to 503  229 

right  exercised  only  by  accused  and  judge-advocate.  .    172  80 

right  to 166  86 

statutory  right,  essential  to  validity  of  proceedings . . .    795  423 

tie  vote  on 173  SO 

to  be  tor  cause  stated,  Art.  88 •  •  I    JOG  if  A 

I     coo  1 oU 

to  the  favor 168  87 

to  the  favor,  includes  what 171  88 

to  the  poll,  classes  of 168  87 

voir  dire,  oath  (see  Voir  Dire).  .  . .  -f    J£I  ,f  J 

[_     ooo  J  cU 

Challenge  to  Duels,  Art.  26  (see  Duels) 733  352 

Character : 

admissibility  of  evidence  as  to  (see  Evidence) 591  266 

boards  to  determine,  of  enlisted  men 526  237 

evidence  as  to,  when  introduced 591  266 

evidence  of,  by  prosecution,  admissible  only  when  .  .  .    592  267 

evidence  of,  purpose  of  introduction  of 592  267 

evidence  of,  to  impeach  witness  (see   Witnesses;    Im- 
peachment)    639  290 

Charges  and  Specifications : 

charges,  accumulative  charges,  not  favored 125  65 

accused  entitled  to  copy  of 129  67 

action  on,  by  commanding  officer  before  for- 
warding      124  65 

action  on,  by  reviewing  authority,  Art.   104 

(see  Reviewing  Authority) 428  195 

additional  charge  for  trial  with  original  charges  127  66 
allegations  as  to  offense,  with  name,  rank,  etc., 

of  accused,  stated  in 117  62 

alteration  of,  when  and  by  whom  made 126  65 

alternative  form  of,  not  permissible 119  63 

any  number  adjudicated  in  one  proceeding.  .  .    120  63 
court-martial  cannot  direct  material  alteration 

in 126  65 

f      34  18 

convening  authority  (see  Arts.  72  and  73)  .  .  •{      41  21 

I      44  23 

designate   offense   committed,   must    be    sus- 
tained by  the  specification. 117  62 

disrespect  to  commanding  officer,  acts  or  words 

to  be  stated  in  specification.  .    727  344 

enlisted  men  to  be  furnished  with  copy  of 129  66 


INDEX  565 

PAR.    PAGE 

Charges  and  Specifications  (continued): 

error  in  name,    lank,   etc.,   corrected   before 

arraignment 118  63 

how  drawn,  and  must  state  what 117  63 

intent  must  be  set  lorth  when  a  necessary  ele- 
ment of  a  crime  (see  intent) 121  64 

intent,  to  be  charged  in  certain  offenses,  Art.  58.  765  395 

investigation  of,  beiore  trial 124  65 

joint,  when  drawn 729  350 

judge-advocate  may  correct  minor  errors  only.    126  66 
must  be  drawn  with  precision  to  designate  the 

offense,  etc 117  62 

name,  rank,  and  organization  of  accused  to  be 

stated  in 117  62 

need  not  be  drawn  in  technical  terms  of  a  civil 

indictment 117  62 

papers  that  should  accompany,  general  courts .    130  67 
papers  that    should   accompany,   for    inferior 

courts 131  68 

previous  convictions  to  accompany  (see  Pre- 
vious Convictions) 130  67 

service  on  accused <    -,yg  416 

specification  to  state  specific  facts  constituting 

the  offense 117  62 

statement  of  service  to  accompany 130  67 

surgeon's  report  to  accompany,  in  case  of  de- 
sertion     130  67 

to  whom  sent 124  65 

who  may  initiate  charges 123  64 

who  may  prefer  charges 122  64 

withdrawal  (see  Nolle  Prosequi) |    2n 

witnesses,  list  of <     ^Q  ^ 

Charges : 

false  charges 122  64 

false  muster,  "knowingly,"  essential  to  charge 712  331 

form  for,  under  Article  17,  Appendix  E 494 

form  for,  under  Article  20,  Appendix  E 495 

form  for,  under  Article  21,  Appendix  E 495 

form  for,  under  Article  24,  Appendix  E 495 

form  for,  under  Article  32,  Appendix  E 

form  for,  under  Article  33,  Appendix  E 

form  for,  under  Article  38,  Appendix  E 496 

form  for,  under  Article  39,  Appendix  E 497 

form  for,  under  Article  40,  Appendix  E 497 

form  for,  under  Article  47,  Appendix  E 497 

form  for,  under  Article  51,  Appendix  E 498 

form  for,  under  Article  58,  Appendix  E 498 

form  for,  under  Article  60,  Appendix  E 498 

form  for,  under  Article  61 ,  Appendix  E 499 

form  for,  under  Article  62,  Appendix  E 500 

fraudulent  enlistment,  what  essential  to 710  328 


INDEX 


Charges  (continued) : 

must  be  laid  under  an  article  of  war 117  63 

not  to  be  drawn  in  alternative  form 724  338 

officer  in  arrest  entitled  to  copy  of 778  416 

under  a  specific  article  of  war,  also  charged  under  the 

61st,  when 117  63 

Chief  of  Engineers : 

may  convene  regimental  court,  Art.  82 77  42 

Chief  of  Ordnance : 

may  convene  regimental  court,  Art.  82 77  42 

Chief  Signal  Officer : 

may  convene  regimental  court,  Art.  82 77       42 

Citizens : 

amenability  to  trial  by  court-martial,  when  (see  Arts. 

46,  63;  Martial  Law,  Military  Government) 770  413 

injuries  to,  Art.  54 761  382 

offenses  against,  when  triable  by  court-martial  (Art. 

58) 765     385 

Civil  Actions: 

liability  of  officer  and  soldier  to 699     320 

Civil  Authority: 

over  military  persons  (see  Relations  of  Military  Per- 
sons to  Civil  Authority) 695     319 

Civil  Courts : 

review  of  proceedings  of  courts-martial  by  writ  of 

prohibition  by 458     210 

jurisdiction  over  enlisted  men  in  certain  cases 31       16 

may  issue  writ  of  habeas  corpus  and  set  aside  proceed- 
ings of  court-martial,  when  (see  Habeas  Corpus). .     63       32 

Civil  Employees: 

amenability  to  trial  by  court-martial,  when 770     413 

Civil  Officers: 

authorized  to  arrest  deserters,  Appendix  B 481 

Civil  Statutes : 

local  laws  of  a  foreign  country  not  laws  of  State,  etc., 

under  58th  Article  of  War 765     396 

Civilians: 

may  be  tried  by  military  commission  when  martial 

law  prevails 682     312 

may  initiate  charges 123       64 

Claims : 

fraudulent,  under  60th  Article  of  War (    ?«£     ?oo 

!_   /o<     oyy 

Classification : 

military  jurisdiction 2  1 

military  law 7  5 

military  tribunals 26  13 


INDEX  567 

PAR.  PAGE 

Clemency : 

application  for,  by  prisoner  in  penitentiary 455  209 

in  time  of  war,  Art.  105 812  430 

recommendation  to,  by  court-martial  members 378  175 

Clerk: 

for  court-martial,  detailed  by  commanding  officer.  . .  .  164  84 

for  court-martial,  enlisted  man  as,  compensation 164  84 

Client  (see  Attorney  and  Client) 632  287 

Closed  doors: 

record  of,  to  be  made  (see  Courts-martial) 152  78 

Clothing: 

accountability  for  (see  Arts.  8  and  10) /  7JJ  ^ 

illegal  possession  of,  Art.  17 724  337 

illegal  purchaser,  of  soldier  may  be  prosecuted 724  340 

issued  to  soldier,  loss  of,  by  soldier,  Art.  17 724  337 

issued  to  soldier  may  be  seized  when,  method  of  pro- 
cedure.  . . 724  341 

issued  to  soldier,  possession  by  civilian  presumptive 

evidence  of  sale 724  341 

issued  to  soldier,  purpose  of  and  condition  of  issue .  .  .  724  339 

issued  to  soldier,  sale  of  prohibited,  Art.  17 724  337 

issued  to  soldier,  seizure  of  when  in  hands  of  illegal 

purchaser  (see  Warrant;  Search  Warrant) 724  339 

issued  to  soldier,  title  to w  .  724  338 

right  of  soldier  to  dispose  of,  after  discharge 724  339 

Command : 

succession  to,  when  different  corps  of  the  army  unite.  .  829  437 

of  army,  etc.,  includes  whom '. 37  20 

when  different  "corps  "  unite,  meaning  of  the  word 

"corps,"  Art.  122 829  438 

Commander  of  Guard : 

not  to  release  or  suffer  prisoners  to  escape,  Art,  69. ...  776  415 
not  to  suffer  parties  to  go  forth  to  fight  a  duel.  Art.  27 

(see  Duels) 734  355 

to  receive  prisoners,  Art.  67 774  414 

to  report  names  of  prisoners,  Art.  68 775  415 

Commanding  General : 

Army  of  the  United  States,  confirms  sentences  of  dis- 
missal, when 814  432 

authority  to  convene    general   courts-martial   (see  /  779  417 

Arts.  72,  73;  General  Courts-martial) \  780  418 

in  field  may  approve  death  sentence,  when 812  431 

Commanding  Officer: 

action  on  charges 1 24  65 

authority  for  arrests  by,  Art.  65  (see  Arrests) |  ^  ^ 

drunkenness  on  duty 745  365 

duty  to  aid  in  arrest  of  offenders  against  laws  of  the  /  107  57 

land,  when \  107  58 


568  INDEX 


PAR.    PAGE 

Commanding  Officer  (continued)  : 

duty  to  deliver  officer  or  soldier  to  civil  authorities, 

when  ........................................   766     396 

duty  under  Article  54  ........  .  .  /    5^1     239 

(_    ooo     240 
meaning  of  word  in  Article  65  .....................     93       52 

offering  violence  to,  or  disrepect  of  orders  of,  Art.  21.  .  .   728     344 
Commissioned  Officer  (see  Officers). 
Common  Law: 

rules  of,  governing  introduction  of  evidence  (see  Evi- 

dence) ........................................   549     247 

rules  of,  with  regard  to  escaping  felons,  etc  .........   746     369 

Commutation  of  Sentence  : 

by  whom  and  when  exercised  (see   Pardon;    Mitiga- 
tion) .........................................   454     208 

change  or  substitution  of  penalty  ..................   453     208 

reviewing  authority  no  power  to  commute 


Competency  of  Witness  : 

definition  (see  Evidence)  .......................  j  j?^  277 

grounds  of  incompetency  .........................  614  278 

crimen  falsi  ...............................  619  281 

husband  and  wife  ..........................  629  285 

infamy  ...................................  616  279 

interest  ..................................  625  283 

privileged  communications  ..................  628  285 

want  of  mental  capacity  ....................  620  281 

want  of  religious  belief  .....................  615  278 

in  deposition  (see  Witnesses)  ..........  ............  798  425 

presumption  as  to  ...............................  612  277 

voir  dire,  oath  .....................  ..............  237  118 

Composition  of  Court=martial  : 

for  trial  of  marine  corps  serving  with  the  army  (Art. 

78)  ..........................................  50  26 

for  trial  of  "militia  »  (Art.  77)  ..................  |  8^}  J® 

for  trial  of  regular  forces  .......................  .  .  50  26 

51  26 


for  trial  of  volunteers  (Art.  77) 

number  of  members,  garrison  court  (Art.  82). 


830  438 

74  40 

789  419 

general  court  (Art.  75) 46  24 

f      77  42 

regimental  court  (Art.  81) <    ygg  41g 

summary  court 80  43 

f      4Q  25 

rank  of  members |    14Q  73 

Compulsion : 

force  or  constraint  necessary 285  135 

of  commander,  by  troops  under  his  command  (Art.  /    285  135 

43) I    750  373 

of  married  women 288  136 


INDEX  569 

PAR.  PAGE 

Concurrent  Jurisdiction  : 

civil  and  military  courts  (see  Jurisdiction)  ..........     31  16 

Conduct  to  the  Prejudice  of  Good  Order  and  Military  Discipline: 

character  of  offenses  (see  Art.  62)  ......  .  ...........   769  411 

Conduct  Unbecoming  an  Officer  and  a  Gentleman  (see  Art.  61): 

penalty  on  conviction  ............................   768  409 

what  constitutes  (Art.  61)  ........................   768  409 

Confessions  : 

{  584  262 

admission  as  evidence,  must  be  voluntary  ........  \  585  263 

I    586  263 

corroboration  of  testimony  of  accomplices  ..........   627  284 

test  of  admissibility  in  evidence  ...................  586  263 

Confidential  Communications  : 

attorney  and  client  ..............................   632  287 

clergymen  and  physicians  .........................   633  287 

husband  and  wife  (see  Evidence)  ..................   629  285 

State  secrets  ....................................  631  287 

Confinement  : 

after  expiration  of  term  of  enlistment   (see    Punish- 

ments) .......................................   320  153 

319  152 

at  hard  labor  .................................       343  163 

345  163 

313  149 

at  military  post  ...............................  \    317  151 

I    804  426 

in  military  prison  ................................   317  151 

f    313  149 

in  penitentiary  (see  Art.  97;  Sentence;  Punishment)  j    ^  J^ 

(    804  426 

of  enlisted  men  (see  Art.  66;  Enlisted  Men)  .........       104  55 

of  enlisted  men,  duty  of  officer  of  the  day  ..........    105  56 

duty  of  officer  of  guard  .....................   105  56 

limit  under  Art.  70  ......................  [    ^  ^ 

to  be  by  order  of  officer.  ...................    104  56 

to  be  reported  within  twenty-four  hours  ......    105  56 

period  of,  limited  (Art.  70)  .......................    106  56 

sentence  to,  takes  effect  when  .....................   318  152 

solitary,  limit  of  .................................   346  164 

solitary,  limit  of,  Appendix  D  (see  Punishment)  .....  492 

f    428  195 

436  199 

Confirmation  of  Sentence  (see  Arts.  104,  105,  106,  107, 

108,  109;  Reviewing  Authority)  .....................  \    ^  ^00 

440  201 

441  201 
Congress  : 

contemptuous  words  against  (Art.  19)  .............   726  342 


f 

\ 


570  INDEX 


Conscription  (see  Art.  124;  Militia) 831  P443 

right  may  be  exercised  by  United  States 831  443 

Conspiracy : 

evidence  admissible  in 581  262 

to  commit  fraud  (Art.  60) 767  398 

to  commit  mutiny  (see  Mutiny) 729  350 

Constitution  of  Courts=martial  (see  Composition  of  Courts- 
martial): 

garrison  courts-martial,  by  whom  constituted  (Art.  f  74  40 

82) \  789  419 

general  courts-martial,  by  whom  constituted  in  time  [  JJ 

of  peace  or  war  (Art.  72) |  £*  *> 

general   courts-martial,    by   whom   constituted   in/  41  21 

time  of  war  (Art.  73) L  780  418 

general  courts-martial,  when  commander  is  accuser  or 
prosecutor  (see  Accuser  or  Prosecutor). 

regimental  courts-martial,  by  whom  constituted  (Art. 

81) 77  42 

summary  courts 80  43 

Constructive  Contempt  (see  Contempt) 71  38 

Constructive  Pardon : 

when  (see  Pardon) 203  103 

Contempt  of  Court : 

act  providing  for  punishment  of  civilian  for  refusal  to 

attend  or  to  testify 72  38 

classified 68  36 

court  judge  of  contempts  before  it 70  38 

court  of  inquiry  no  powrer  to  punish 469  216 

direct,  method  of  procedure 70  37 

indirect,  or  constructive,  definition  of 71  38 

members  of  courts-martial j  ^g^  £JL 

(  70  37 

procedure  in \  72  38 

I  73  39 

{f*&  o  pr 

yqo  420 

refusal  to  obey  subpoena 72  38 

who  may  be  punished  for 68  36 

(  AC  Qfi 

witness  refusing  to  testify,  etc \  ^ 

Contempt  or  Disrespect: 

contemptuous  or  disrespectful  words  towards  Presi- 
dent, Vice-President,  and  other  authority  (Art.  19). .  726  342 

Continuance : 

application  for  (Art.  93) |  ^Q  4^ 

f  183  95 

ground  for  asking  and  granting,  "reasonable  cause  "  •{  800  425 

I  800  426 


INDEX  571 


PAR.'    PAGE 

Contract  of  Enlistment: 

effect  of,  as  to  status  .............................  710  326 

effect  of,  as  to  status,  Appendix  E  (see  Enlistment).  .  538 

executive  may  annul  .............................  711  330 

void  in  what  cases  ...............................   710  326 

Contracts  : 

government,  officers  liable  on  when  not  warranted  by 

law  ..........................................   699  320 

government,  officers  not  liable,  when  ...............   699  320 

United  States  cannot  be  sued  except  with  its  consent  699  320 

Contributions  : 

by  whom  levied  in  time  of  war  (see  Laws  ot  War).  .  .   657  299 

Convening  Authority  : 

C           *%f\  1  Q 

accuser  or  prosecutor  (see  Arts.  72,  73;  Accuser  or  j  99 

Prosecutor)  .............                             ......  1    779  417 

cannot  delegate  power  ...........................     39  20 

commander  of  division  ...........................     41  21 

commander  ot  separate  brigade  ....................     41  21 

corps  commander  ................................     38  20 

f      34  18 

court-martial  (see  Arts.  72  and  73;  Constitution  of 
Courts-martial)  .............................. 


(    780     418 
general  courts-martial   (see  Constitution  of  Courts- 

martial). 

inferior  courts  (see  Constitution  of  Courts-martial). 
in  time  of  peace  (see  Art.  72)  .....................     34       18 

in  time  of  war  (see  Art.  73)  .....................  <    ^^     ^g 

judge-advocate,  appointment  by  (see  Art.  74)  .....  |    ^     4J| 

of  court  of  inquiry  (see  Art.  115)  ..................  460  212 

of  court  of  inquiry,  may  return  record  for  revision.  .  .  476  219 

President  as  ....................................  36  19 

superintendent  of  Military  Academy  ...............  44  23 

Conventions  : 

to  ameliorate  condition  of  sick  and  wounded  in  war- 

fare (see  Laws  of  War)  .........................   656     298 

Convictions  :  previous  (see  Previous  Convictions). 
Convicts  : 

{SSTJSJ 

Copies  of  Documents  (see  Documents): 
as  evidence  (see  Evidence). 

exemplified;  office;  or  sworn  copies  (see  Evidence).  .   561     254 
foreign  laws  or  judgments,  how  authenticated  .......   560     253 

public  documents,  how  authenticated  ............  |    ^J     254 

war  department  records,  how  authenticated  .........   558     253 


572  INDEX 


PAR.  PAGE 

Corps : 

meaning  of  words  in  Art.  122 829  438 

Corps  Commander : 

may  convene  court-martial  under  Art.  107,  when. .  .  | 

[  oo  Z(J 

Corps  of  Engineers: 

regimental  courts,  Art.  81 , 77  42 

Corpus  Delicti : 

must  be  shown  when 597  270 

to  be  proved  in  charge  of  murder,  etc 765  393 

Correspondence : 

with  the  enemy,  Art.  46 753  375 

Counsel : 

civilian  may  be 155  80 

f  157  81 

I  158  82 

duty  of,  to  accused •{  159  82 

|  160  83 

I  161  83 

judge-advocate  as,  Art.  90  (see  Judge-Advocate) 157  81 

restriction  on 161  83 

right  to 154  80 

Counterfeiting: 

defined,  distinguished  from  forgery,  how  proved 767  402 

Countersign : 

making  known,  Art.  44 751  373 

what  constitutes,  to  whom  only  given 751  373 

Courts : 

decisions  of 21  11 

provisional,  provost  (see  Military  Government) 664  301 

Courts=martial : 

action  not  final  until  approved 428  195 

adjournment,  stated  and  authenticated  in  record  .  .  <  .V,  ..07 

appointed  by  President,  when 779  417 

appointed  by  whom  (see  Constitution  of  Courts-mar- 
tial). 

as  "courts  of  honor  " 28  14 

assembling  of  court  and  procedure  thereupon 153  79 

authority  for 26  13 

cannot  direct  material  change  in  charges  or  specifica- 
tions   126  65 

challenge  of  members  (see  Challenges). 

changes  in  membership  of 386  180 

classified 26  13 

closed  during  deliberations 400  184 

closed  session 152  78 

comments  by,  in  proceedings 300  143 

competency  of  members  (see  Art.  77) 784  419 

composition  (see  Composition  of  Courts-martial) 46  24 


INDEX  573 


PAR.  PAGE 

Courts-martial  (continued)  : 

composition  wiien  marines  are  serving  with  regulai  J      50  26 

army  ..................  :  .  ..  ..........  .......  I    785  419 

condition  necessary  to  show  jurisdiction  ot  .........  .     67  35 


conduct  of  members 


144  ^ 

constitution  (see  Constitution  of  Courts-martial). 

continuance,  granted  by  .........................    176  91 

convening  authority  (see  Convening  Authority;   Con- 

stitution of  Courts-martial). 

courts  of  honor  ..................................   292  139 

decide  questions  of  law  as  well  as  of  fact  ...........      30  15 

determines  relevancy   and    validity   of   challenge   of 

members  .....................................   795  423 

f      47  24 

eligibility  as  members  ..........................  •{      50  26 

I    133  70 
eligibility  as  members  of,  officers  of  regulars,  volun- 

teers, and  militia  ..............................    134  70 

eligibility  as  members,  of  retired  officers  ...........    135  70 

evidence  before  (see  Evidence)  ....................   547  246 

excess  of  jurisdiction,  writ  of  habeas  corpus  .........   457  209 

executive  agencies  ...............................    547  246 

finding,  acquittal,  wording  of  .....................   299  143 

finding  how  made  and  recorded.  .  .................   405  185 

finding,  evidence  to  sustain  ............  *  ...........    294  140 

finding,  of  lesser  kindred  offense  .................  <    ^qj  149 

finding,  on  plea  of  guilty  with  exceptions  ...........   296  141 

finding,  on  single  specification  supports  charge  ......   295  140 

finding,  on  specification,  to  support  charge  ..........    295  140 

finding,  to  conform  to  tacts  established  .............   293  140 

finding,  under  a  specific  article,  charge  under  general 

article  .......................................  .   298  142 

finding,,  when  and  how  made  ......................   292  139 

form  of  special  order  promulgating  sentence,  Appen- 

dix E  ........................................  534' 

forms  for  sentences  of,  Appendix  E  ................  522 

functions  of,  to  get  whole  truth  and  decide  according 

to  evidence  ...................................      29  15 

garrison  ........................................      26  13 

garrison,  limits  of  punishment  .....................    790  420 

garrison,  who  may  appoint  .......................   789  419 

general  .........................................      26  13 

general,  officers  to  be  tried  only  by  ................    140  72 

general,  organization,  number  of  members  ..........    132  69 

general,  organization,  seating  of  members,  judge- 

advocate  .....................................    142  73 

general,  president  of  the  court,  duties  ............  | 

independence  of  the  court  ........................    175  91 

inferior  courts,  jurisdiction  .......................   790  420 

judge-advocate,  performance  of  other  duties  ........    146  75 

judgments,  reviewed  by  civil  courts,  when  and  how  ..     27  14 


574  INDEX 


PAR.  PAGE 

Courts=martial  (continued) : 

judgments,  not  subject  to  appeal  to  civil  courts 27  13 

judgments,  when  having  jurisdiction,  are  conclusive.  .  30  15 
judgments,  when  illegal,  brought  beiore  civil  courts 

by  habeas  corpus 63  32 

jurisdiction  in  case  of  unauthorized  trade  with  State 
in  rebellion,   embezzlement,  false    returns,    fraud, 

etc.  . : 837  450 

jurisdiction  over  criminal  offenses  only. ' 28  14 

jurisdiction  over  offenses  in  time  of  war 765  385 

jurisdiction  over  persons  in  service  retaining  or  trad- 
ing in  captured  property 838  450 

jurisdiction  over  spies 836  448 

lawful  tribunals  with  plenary  jurisdiction  over  mili- 
tary offenses 27  14 

liability  of  members |  j~  ~^ 

marine  corps,  detached  for  service  with  the  army.  .  .  .  785  419 

may  adjourn  to  quarters  of  sick  witness .  250  122 

may  be  reviewed  as  to  its  acts,  in  civil  courts,  on  ques- 
tion of  jurisdiction 456  209 

may  examine  witnesses 242  120 

may  grant  continuance  or  postponement  of  trial  (see  /  176  91 

Continuance) \  800  425 

may  receive  evidence  as  to  good  character 592  267 

may  reconsider  sentence,  when 324  154 

member,  thinking  himself  disqualified  to  report  fact  to 

convening  authority 172  90 

member  to  withdraw  if  challenge  sustained 389  181 

members  are  to  be  sworn  in  each  case 791  422 

members,  competency  to  sit  not  affected  by  promo- 
tion   139  72 

members,  how  seated 142  73 

members  may  be  proceeded  against  for  disorderly  con- 
duct in  court 69  37 

members  may  testify  as  witnesses 233  116 

I  QCO  1  '7Q 

members  must  be  duly  sworn  in  each  case <  -**  ^o 

members,  number  of  (see  Composition  of  Courts-mar- 
tial)  • 136  71 

members,  number  of,  by  whom  determined  (see  Com- 
position of  Courts-martial) 136  71 

members  of,  on  equality  in  deliberations,  etc 293  139 

members,  performance  of  other  duties 1 46  74 

members,  subject  to  challenge 166  86 

members,  subject  to  damages  for  illegal  punishment 

awarded 30  15 

(  ^70  1 7*3 

method  of  voting  by  members  (see  Voting) <  g^  426 

necessity  for  convening,  who  decides 39  21 

new  members,  procedure  when  detailed 138  71 

new  members  of,  to  be  sworn,  subject  to  challenge  ...  386  180 

not  "courts  of  record  " 27 

not  part  of  judicial  system 27       13 


INDEX  575 

PAR.    PAGE 

Courts=martial  (continued): 

number  of  officers  10  constitute  (see  Composition  of 

Courts-martial) . 782  418 

oath  of  members 791  421 

objection  to  questions,  decided  by  court 401  184 

officer  of  regular  army  may  be  member  for  trial   of 

marines,  when 785  419 

officers  of  regular  army  not  to  be  members  for  trial  of 

other  forces,  etc 784  419 

officers  not  to  be  tried  by  juniors  in  rank  if  it  can  be 

avoided 786  419 

officers,  who  may  appoint,  in  peace  or  war  (see  Con- 
stitution of  Courts-martial) 779  417 

officers,  who  may  appoint  in  time  of  war 780  418 

pardon  or  mitigation  of  sentence  of 819  434 

power  to  punish  civilians  for  contempt 68  36 

president  of,  administers  oath  to  judge-advocate  when 

a  witness 233  117 

proceedings  (see  Record) 380  176 

punishment  of  civilian  witness  for  contempt  of 72  38 

quorum,  change  in  membership 145  74 

quorum,  on  trial  and  on  revision 136  71 

rank  of  members 135  70 

reassembling  after  adjournment 152  79 

recommendation  to  clemency 378  175 

.  ,                      r              ,.                   /    416  190 

reconvening  court  for  revision  of  proceedings <    41g  jgj 

record  of  (see  Record). 

record,  application  for  copies  of  general  courts  (see 

Art.  114) 423  193 

record,  authentication  of 152  79 

record  of,  to  whom  forwarded - <    82Q 

regimental 26  13 

regimental,  for  doing  justice,  not  a  trial  court,  Appen- 
dix A (note)  464 

regimental,  limits  of  punishment 790  420 

regimental,  number  of  officers 788  419 

regimental,  who  may  appoint 788  419 

review  of  proceedings  by  civil   courts  only  had   on 

questions  of  jurisdiction 456  209 

revision  proceedings 415  189 

revision  proceedings,  case  cannot  be  reopened  by  call- 
ing witnesses. .  .  . . , 418  192 

revision  proceedings, not  a  "second  trial  " 809  429 

revision  proceedings,  quorum 416  190 

sentence  (see  Reviewing  Authority;   Pardon;  Mitiga- 
tion; Sentence). 

sentence  cannot  be  executed  until  approved 811  430 

sentence,  discharged  soldier  in  confinement  for  offenses 

committed. 366  170 

sentence,  within  legal  limits,  wholly  in  discretion  of 

court 323  153 

sessions  of  (see  Record) 153  79 


576  INDEX 

PAR.  PAGE 

Courts=martial  (continued): 

summary  court,  a  court-martial  within  meaning  of 
appropriation  for  expenses,  etc.;  expenses  of   wit- 

nesses ........................................  790  421 

summary  court,  limits  of  punishments  ..............  790  420 

trial  by,  cannot  be  demanded  except  under  Art.  30 

and  Sect.  1230  R.S  ............................  39  21 

uniform  of  members,  judge-advocate,  witnesses,  etc...  147  75 

who  may  convene,  in  time  of  war  .................  41  21 

without  jurisdiction,  acts  illegal  and  void  ...........  30  15 

witness  before  (see  Witnesses)  .....................  212  107 

Courts  of  Honor  : 

court-martial  as  .................................  28  14 

Courts  of  Inquiry  (see  Arts.  115,  116,  117,  118,  119,  120): 

accused  may  testify  at  his  own  request  .............  470  216 

accuser  and  accused  may  be  present  ...............  464  215 

action  on  proceedings  ............................  476  218 

application  for  ..................................  460  212 

assimilated  to  courts-martial,  but  not  a  judicial  tri- 

bunal ........................................  459  212 

authority  for,  constitution  of,  procedure,  etc  .........  460  212 

by  whom  and  when  ordered  .......................  822  435 

challenges  of  members,  how  made  .................  466  215 

closed  or  open,  in  discretion  of  court  .  .  .............  472  217 

composition,  Art.  116  ............................  461  213 

conclusions,  not  concurred  in  by  all  members,  separate 

reports  .......................................  475  218 

constitution,  when  and  by  whom  convened  .........  462  214 

copy  of  proceedings,  how  obtained  .................  478  219 

court,  as  well  as  recorder,  may  summon  witnesses  ....  469  216 

duties  of  recorder  ................................  473  217 

examination  of  witnesses,  evidence  before  ...........  470  216 

f  472  217 
examination  of  witnesses,  similar  to  courts-martial  .  . 


form  of  order  for  ................................  463  214 

functions  of,  limitation  to  persons  in  military  service 

and  acts  wholly  therein  .......................  .  468  215 

may  determine  as  to  admissibility  of  evidence  .......  471  216 

meaning  of  "commanding  officer  "  ............  „  .  .  .  462  214 

meaning  of  word  "demand,"  Art.  115  ..............  462  214 

member  absent,  action  in  case  of  ..................  464  214 

members  sworn  .................................  461  213 

no  power  to  issue  process  to  compel  attendance  of 

civilian  witnesses  ..............................  469  216 

no  power  to  punish  for  contempt  ..................  469  216 

not  affected  by  statute  of  limitations  ...............  459  212 

not  governed  strictly  by  rules  of  evidence  ...........  471  216 

not  to  give  opinion  unless  ordered  .................  826  436 

number  of  members  and  recorder  ..................  823  436 

oath  ...........................................  824  436 

organization  ....................................  464  214 

person  investigated,  presence  of  ................  ....  464  214 


INDEX  577 

PAR.  PAGE 

Courts  of  Inquiry  (continued). 

power  to  summon  and  examine  witnesses 460  213 

«» {%  %& 

proceedings   admitted  as  evidence,  when 478  219 

proceedings,  how  authenticated,  to  whom  delivered.  .   460  213 

.  purposes  of   opinion  to  what  confined 826  436 

quorum 466  21 5 

rank  of  officers  relative  to  persons  under  investigation  461  213 

record,  action  on 476  218 

consists  of  what,  how  made  up 474  218 

disposition  of 422  193 

as  evidence,  Art.  121 478  219 

form  of,  etc.,  how  authenticated,  to  whom  de- 
livered    474  217 

returned  for  revision 476  219 

to  state  opinion  when  so  ordered 474  218 

recorder 469  216 

report  of.  may  be  withheld  or  published  by  convening 

authority 477  219 

reporter,  authority  and  compensation  for 465  215 

reports   and   conclusions  confidential,   as  in    courts- 
martial 475  218 

statute  of  limitations  not  applying  to 191  99 

when  and  by  whom  convened 460  212 

witnesses 473  217 

witnesses  before |    ^^  ^IQ 

Court  of  Justice: 

meaning  of  term 791  422 

Cowardice : 

sentence  of  officer  on  conviction  of  publication 807  428 

Credibility  of  Witnesses: 

definition  of  (see  Impeachment;  Witnesses) j    g^j  277 

determined  by  court 235  117 

general  reputation  for  truth  and  veracity 641  291 

impeachment  of 639  290 

Crimen  falsi: 

conviction  of,  excludes  witness 616  280 

definition    of,    what   constitutes   (see   Evidence;    In- 
famy)    619  281 

offenses  included  in 619  281 

pardon,  effect  of 617  280 

Crimes : 

against  United  States,  arrest  for,  by  whom.  . 839  451 

against  the  United  States,  procedure.  . 839  451 

capital,  not  chargeable  under  62d  Article,  as   lesser 

offense 769  411 

degrees  of,  in  murder,  etc 765  395 

distinguished  from  neglects  and  disorders 769  411 

elements  necessary  to  constitute 265  128 

meaning  of  word  as  used  in  Article  65 93  52 


578  INDEX 


PAR.  PAGE 

Crimes  (continued): 

subject  to  trial  by  general  courts-martial  in  time  of 

war,  etc.,  Art.  58  ..............................  60  31 

Crimes  under  Articles  of  War  : 

counterteiting  ...................................  767  402 

embezzlement  ...................................  767  404 

false  swearing  ...................................  767  401 

forgery  .........................................  767  402 

larceny  .........................................  767  404 

misappropriation  of  funds  ........................  767  407 

perjury  .......................................  .  .  767  401 

receiving  stolen  goods,  etc  ........................  767  407 

subornation  of  perjury  ...........................  767  401 

Crimes  under  Article  58  : 

arson  ..........................................  765  388 

assault  and  battery  with  intent  to  commit  rape  .....  765  395 

assault  and  battery  with  intent  to  kill  ..............  765  393 

burglary  ........................................  765  387 

homicide  .......................................  765  390 

larceny  .........................................  765  385 

manslaughter  ...................................  765  390 

mayhem  ........................................  765  389 

murder  .........................................  765  392 

rape  ...........................................  765  394 

robbery  ......................  .  .....  ....  ........  765  386 

wounding   by  shooting  or  stabbing  with  intent    to 

murder  .......................................  765  394 

Criminal  Capacity  : 


incapacity  (see  Defenses) 


f       OA  P\         1  Oft 


g^  ^99 
Criminating  Questions  : 

accused  not  required  to  answer  (see  Evidence;  Wit-  j    fi^ft  ^CJ 

•»-»>•;  .....                                                          •[   64~4  S)3 

military  witness  must  answer  question  court  decides 

as  not  criminating  .............................   637  289 

must  be  answered  when  immunity  is  afforded  by  law  .  .  .   635  289 

no  person  to  be  a  witness  against  himself  ...........   634  288 

objection  made  only  by  witness  ...................   636  289 

waiver  of  objection  to,  by  witness  ..........  :  ......   638  290 

witness  must  object  to,  under  oath  ................   636  289 

Cross-examination  : 

of  accused  ......................................   264  126 

f    241  119 

of  witnesses  (see  Witnesses)  .....................  \    644  293 

I    646  293 

Cross=interrogatories  (see  Depositions)  ..................  254  123 

Cumulative  Evidence  ...............................    554  250 

Customs  of  Service  (Art.  84)  .......  ..................  |    ?*J  4*J 

conditions  of  acceptance  ........................  \      2o  11 

local  usages,  admissible  when,  purpose  .............     20  11 


INDEX  579 

PAR  PAGB 

Customs  of  War  (see  Customs  of  Service). 

Damages : 

to  private  property  (Art.  54),  reparation  for  (see  Arts. 

54,  55,  56) 531  239 

to  private  property  (Art.  54),  stoppages  for  (see  Stop- 
pages)   533  239 

to  public  property  (see  Surveying  Officer) 537  241 

Death : 

of  enlisted  men,  procedure  in  case  of  (see  Art.  126).  .  .   833  445 

officer,  procedure  in  case  of  (see  Art.  125) ..  .  .  : 832  444 

sentence,  approval  of    Art.  105   (see    Punishment;]    d,n  9m 

Sentences)........ {    "0  ^1 

sentence,  execution  of 328  157 

sentence,  mandatory,  under  Art.  57 330  157 

sentence,  prescribed,  but  not  mandatory,  when 331  158 

sentence,    requires   two-third    vote    of    members    of 

court 803  426 

sentence,  suspension  of 818  434 

Debts : 

indifference  to  private,  bringing  scandal  to  service  (see 

Art.  61) 768  410 

Decisions : 

ot  heads  of  executive  departments 23  12 

opinions    (see   Attorney-general;     Judges-advocate-  /      24  12 

general) ; \      25  12 

Decisions  of  Courts : 

legal  precedents 21  11 

Declaration  of  Martial  Law  (see  Martial  Law). 

Declarations : 

against  interest  (see  Confessions;  Evidence) 583  262 

Defense : 

f    262  125 

accused  as  witness •{    263  126 

I    264  126 

character  evidence  as  to J    591  266 

I    592  267 
conduct  of  (see  Defenses). 

meaning  of  the  term 287  129 

witnesses  for,  how  introduced 260  125 

how  sworn 261  125 

Defenses  (see  Pleas). 

alibi,  how  established 289  136 

burden  of  proof  to  establish  incapacity  on  accused. .    278  133 

criminal  capacity,  presumption  as  to.    <    ^^  j  .^ 

drunkenness  as  affecting  '•  intent" 275  132 

drunkenness  as  a  defense.  .                                            .   277  133 


580  INDEX 

PAR.  PAGE 

Defenses  (continued) : 

elements  necessary  to  constitute  crime 265  128 

incapacity  through  circumstances  beyond  control . .  .  279  133 

burden  of  proof  in  case  of 284  134 

{OQf\  1  O  A 

281  134 

ignorance  or  mistake  of  law 279  133 

incapacity  through  constraint 285  135 

compulsion 285  135 

married  women 288  136 

obedience  to  orders {  287  136 

incapacity  through  defect  of  understanding 269  130 

defect  of  mind 270  130 

f  275  132 

drunkenness <{  276  132 

I  277  133 

idiocy 270  130 

infancy 269  130 

insanity 271  130 

burden  of  proof 274  132 


classes  of. 


271     130 


271  131 

moral  or  emotional,  not  excusing 272  131 

test  of 273  131 

intent,  lack  of,  when  shown 268  130 

latitude  allowed  the  accused 267  129 

obedience  to  orders  of  superior j  287  135 

provocation 283  134 

statement 290  137 

Degrading  Questions  (see  Witnesses): 

witness  not  compelled  to  answer,  Appendix  C 482 

Deliberations : 

court-martial  in  closed  session 152  78 

Department  Commander  (see  Convening  Authority;   Re- 
viewing Authority). 

approves  death  sentence,  when 812  431 

Departmental  Regulations : 

authority  for,  purpose  of 14  8 

Departure  (see  Variance). 

Deposition  (Article  91): 

account  of  witness  certified  by  judge-advocate 258  1 24 

admission ,  all  or  no  part  to  be  admitted 798  424 

affidavits,  ex  parte,  not  admissible  as 259  125 

(  2^1  1 '?'? 

authority  for,  Article  91 |  |gg  ^ 

capital  cases,  not  to  be  taken  in 251  122 

competency  and  credibility  of  deponent  determined 

by  court 798  425 


INDEX  581 

PAR.  PAGE 

Deposition  (continued): 

completed,  certified  by  officer  taking,  disposition  of.  257  124 

fees  paid  persons  before  whom  taken  ..............  258  124 

f  252  122 

how  prepared,  etc  .............................  \  253  123 

I  254  123 

in  foreign  countries,  by  commission  ................  257  124 

interrogatories,  form  for,  Appendix  E  .............  526 

may  be  received  by  retiring  board  ................  494  225 

may  be  taken  when,  and  in  what  cases  ............  251  122 

not  subject  to  objection  if  duly  taken  ..............  259  125 

not  to  be  read  in  capital  cases  ....................  798  424 

oath  to  witness  may  be  administered  by  whom  .....  256  124 

of  military  witness,  how  obtained  .................  255  123 

of  witness  may  be  obtained  when  .................  250  122 

pay  of  -persons  before  whom  taken  ................  258  124 

preparation  of  ..................................  254  123 

subpoena  for    civilian    witness,    form   of,    Appendix 

E  ............................................  524 

subpoena  to  be  in  duplicate  ......................  254  123 

subpoenas  for  witness,  how  served  ..................  252  122 

taken  by  agreement  or  on  reasonable  notice  to  other 

party  ........................................  253  123 

taken,  cannot  be  withheld  by  either  party  ...........  798  424 


territorial  restriction,  Article  91 


r    251     122 

< 


when  and  how  obtained,  when  admissible  ..........  798     424 

within  the  State,  Territory  or  District  .............  252     122 

Deserter  : 

approval  of  death  sentence  in  time  of  war  ..........  812     430 

authority  for  arrest  of  ............................  754     378 

civil  officers,  authority  to  arrest,  Appendix  B  .......  481 

definition  of  ....................................  710     328 

enlistment  of,  prohibited  ..........................  710     328 

enticing  to  desert,  harboring  or  concealing  deserter, 

penalty  ......................................  758    381 

forfeiture  by,  on  conviction  (see  Appendix  D)  .  .  .  .  < 

(See  Forfeitures;  also  Punishments.) 
liability  to  make  good  time  lost,  may  be  waived  by 

United  States  ................................  755     379 

5nay  be  tried  after  expiration  of  enlistment  .........  755     378 

Mot  to  be  sentenced  to  death  in  time  of  peace  .......  754     375 

officer  resigning  who  leaves  post  prior  to  notice  of 

acceptance  ...................................  756     379 

pardoned  and  restored  to  duty,  effect  of  ...........  710     328 

reward  for  .....................................  754     376 

right  of  U.  S.  to  try,  paramount  ...................  .  754     378 

soldier  enlisting,  without  discharge,  in  another  regi- 

ment, etc  ....................................  757     380 

statute  of  limitation  as  defense  (see  Desertion)  . 

surgeon's  report  on  alleged,  Appendix  E  ............  503 

to  make  good  time  lost  ...........................  754     377 


582  INDEX 


PAR.    PAGE 

Desertion : 

absence  with  intent  not  to  return 754  376 

advising  or  persuading  to  desert 758  381 

defined,  includes  absence  without  leave 754  376 

dishonorable  discharge  relieves  from  charge  of 360  169 

elements  essential  to  offense 754  376 

enlistment  in  another  regiment  constitutes 757  380 

escape  of  prisoner  constitutes,  when 734  376 

evidence  of  previous  convictions,  in  trial  for  (see  f    307  146 

Appendix  D) 1  491 

forfeiture  on  conviction  of 1    25  !«« 

L    ooo  loo 

form  for  charges,  Appendix  E 497 

honorable  discharge   or  "without   honor"  does  not 

relieve  from  charge  of,  in  prior  enlistment .........   360  169 

includes  intent  not  to  return 754  376 

limits  of  punishment  for,  Appendix  D 484 

loss  of  property  by  deserter  (see  Surveying  Officer)  .    546  245 

officer,  dropped  for 66  34 

f    754  378 

penalty  for •{     186  96 

[    754  375 

f    186  96 

statute  of  limitation  in  trial  for,  Article  103 \    J§Q  ?I 

I    iyo  yy 

[    810  429 

survey  on  property  in  case  of 546  245 

what  proof  necessary  to  convict  of 754  376 

Dilatory  Pleas  (see  Pleas). 180  94 

Discharge : 

359  168 

360  169 

361  169 
711  329 

492 

effect  of 711  329 

honorable,  by  order  of  President  or  Secretary  of  War.   711  329 

by  purchase  or  favor 711  329 

on  certificate  of  disability 711  329 

on  writ  of  habeas  corpus,  U.  S.  Court 711  329 

on  expiration  of  term  of  enlistment,  soldier  entitled  f    711  329 

to \    711  330 

upon  petition  of  soldier,  conditions  may  be  prescribed  711  330 
when  sentence  extends  confinement  beyond  period  of 

enlistment 320  153 

without  honor 360  169 

Discipline: 

civilians,  when  subject  to,  Article  63 770  413 

conduct  to  the  prejudice  of.  Article  62 769  411 

Dishonorable  Discharge  (see  Discharge): 

executed,  cannot  be  revoked 447  206 


dishonorable,  by  sentence  of  general  court-martial 


(see  Appendix  D). 


INDEX  583 


PAR.  PA.GE 

Dismissal : 

applies  to  officers  only 326  156 

by  executive  order |  335  -^Q 

by  sentence  of  court-martial  convened  by  commander 

of  division  or  separate  brigade 814  432 

constructive  notice  of 813  432 

f  713  331 

disqualification  for  office,  after,  Arts.  6,  14 <  ^\  336 

effect  of 333  160 

tor  cowardice,  Art.  100 807  428 

in  time  of  peace 806  427 

publication  of  sentence,  Art.  100 807  428 

record  of  court  of  inquiry  as  evidence  in  case  involving .  828  437 

sentence  of,  under  Article  61 768  410 

summary,  in  time  of  war,  appeal  from 335  161 

summary,  in  time  of  war  only 335  160 

summary,  no  legal  disability  attached 335  161 

suspension  of  sentence  of,  Art.  Ill 818  434 

suspension  of  sentence  of 818  434 

takes  effect,  when |  g°J  ^ 

Dismissal  of  Cadets : 

summary,  for  hazing 336  161 


Disobedience  of  Orders  (see  Art.  21): 

character  of,  how  given 728  347 

consists  in  what 728  346 

definition  o'f  "order  " 728  346 

of  superior  officer,  Art.  21 728  344 

order  must  be  lawful;  presumption 728  347 

Disorders  (see  Art.  24): 

power  to  quell,  Art.  24 731     351 

what  constitutes,  under  Art.  62 769     412 

Disrespect : 

toward  commanding  officer,  Art.  20 727     344 

toward  commanding  officer,  acts  or  words  to  be  stated 

in  specifications 727  344 

toward  commanding  officer,  form  for  charge,  Appen- 
dix E 495 

toward  commanding  officer,  how  exhibited,  what  con- 
stitutes  ! 727  344 

toward  commanding  officer,  meaning  of  "command- 
ing officer  " 727  344 

toward  President,  Vice-President,  Congress,  or  other 

civil  authority,  Art.  19 726  342 

District  Attorney,  U.  S. : 

to  prosecute  civilian  witnesses  refusing  to  appear  or  f      72       38 
testify  before  courts-martial  (see  Appendix  C)..  .  \  482 

what  facts  and  papers  to  be  furnished  for  prosecution 

of  recalcitrant  witness 73      39 


584  INDEX 


PAR.  PAGE 

Divine  Service : 

attendance  and  behavior  at,  Art.  52 759  381 

Division  Commander : 

convening  authority,  when,  Art.  73  (see   Convening 

Authority) 41  21 

reviewing    authority,    when    (see    Reviewing    Au-J  430  196 

thority) \  431  197 

Documentary  Evidence: 

introduction  of  (see  Evidence) 566  256 

Documents : 

alteration  of,  or  erasures  in 565  256 

as  evidence  (see  Evidence) 566  256 

court-martial  record  as  evidence 558  253 

court  of  inquiry  record  as  evidence,  Art.  121 478  219 

courts,  records  and  judicial  proceedings  of 557  252 

foreign  laws  and  judgments <  5™  2r;Q 

identification  of,  burden  of  proof 567  257 

interlineations  of,  erasures  in,  etc 565  256 

notice  to  produce 566  257 

private,  how  produced  in  evidence 566  256 

f  562  254 

private  writings,  authentication  of -j  563  255 

I  564  256 

public  records  as  evidence,  copies |  557  254 

public  records,  authentication  of  (see  Copies  of  Docu- 
ments)  : 561  254 

secondary  evidence , .  .  556  251 

State  laws,  records,  etc 557  252 

war  department  records 558  253 

Double  Amenability: 

persons  in  military  service  (see  Amenability) 112  59 

Drunkenness : 

as  affecting  criminal  "intent  " j  276  132 

defined 745  364 

nature  of  intoxicant 277  133 

«•  365 

275  132 

pleaded  in  defense,  when •{  277  133 

[  745  366 

presumption  of  criminal  capacity,  burden  of  proof. .  278  133 

Drunkenness  on  Duty  (see  Art.  38): 

appearance  for  duty  when  intoxicated /.'.",.  745  365 

commanding  officer 745  365 

commissioned  officer 745  364 

defined 745  364 

guard,  party,  or  other  duty,  penalty 745  364 

medical  officer 745  365 

nature  of  intoxicant: .  745  366 


INDEX  585 

PAR.  PAGE 

Drunkenness  on  Duty  (continued) : 

need  not  entirely  incapacitate 745  366 

post  quartermaster 745  365 

Duces  Tecum : 

iorm  of  subpoena  for  civilian  witness,  Appendix  E  .  .  .  524 

Duels : 

accepting  or  sending  challenge  (see  Challenge;   Arts. 

25,  20) 733  355 

carrier,  without  knowledge,  not  punishable 734  356 

carrying  challenge,  suffering  or  promoting,  etc 734  355 

challenge,  sending,  an  offense 733  355 

challenge,  what  constitutes 733  354 

definition  of 733  354 

duty  of  commanding  officer,  Art.  27 734  355 

engaging  in  a  duel 733  353 

engaging  in,  chargeable  under  Art.  62 733  353 

engaging  in,  punishable  at  common  law 733  354 

forbidden  by  common,  statute,  and  moral  law 735  354 

form  of  challenge 733  354 

permitting,  penalty  for 734  355 

seconds  or  promoters  guilty  as  principals 734  355 

upbraiding  for  refusal  to  fight,  prohibited 735  356 

Duress  (see  Compulsion). 

Duty: 

drunkenness  on.  Art.  38  (see  Drunkenness  on  Duty). 

every  soldier  to  perform  his  own,  except  sick,  etc.  . .  .  743  363 

hiring  another  to  do,  prohibited,  Art.  36 743  363 

neglect  of  (see  Art.  62) 769  411 

»  3M 

of  sentinels 746  367 

of  sentinels  in  charge  of  prisoners  (see  Sentinels) 746  368 

on  duty,  meaning  of  term 745  364 

Dying  Declarations: 

admissibility,  determined  by  court 582  262 

admission  as  evidence,  when  (see  Evidence) 582  261 

Effects  of  Deceased  Officer : 

disposition  of,  Art.  125 832  444 

Effects  of  Deceased  Soldiers : 

disposition  of ,  Art    126 833  446 

Embezzlement  (Art.  60): 

acts  constituting  prima  facie  evidence  of 767  407 

acts  declared  by  statute  to  constitute,  statutory. . . .  |  ^^  ^^ 

acts  of  conversion  to  his  own  use 767  406 

conversion  of  funds 767  404 

defined,  differs  from  larceny 767  404 

form  of  charge  for,  Appendix  E 502 

funds  held  in  fiduciary  capacity 767  404 


586  INDEX 


PAR.  PAGE 

Embezzlement  (continued) : 

intent  in 767  408 

kinds  of,  depending  on  intent 767  408 

officers,  affected  by  statutes  concerning j  !®f 

\  767  404 

penalty \  767  405 

I  767  408 

statutory  provisions  tor  punishment  of 837  450 

what  must  be  proved  to  establish 767  406 

Employee : 

subject  to  military  discipline  when,  Art.  63 770  413 

Employment  of  Troops  to  Enforce  the  Laws : 

action  required  of  officer  applied  to,  therefor 692  317 

army  as  posse  cormtatus.  .  . 689  315 

constitutional  duty  ot  President,  his  powers 688  315 

in  emergency,  responsibility  of  commander 693  318 

necessity  detarmined  by  President,  he  has  jurisdic- 
tion over  all  territory  within  the  United  States, 

and  to  enter  State  limits 694  318 

proclamation  of  President 694  318 

{  690  315 

purposes  for  which  army  may  be  used  .",* \  690  316 

(note)  [  690  317 

removal  of  trespassers  from  military  reservations,  (note)  691  317 

restriction  on,  by  act  of  Congress 689  315 

to  guarantee  republican  form  of  government  to  a  State, 

or  protect  it  from  invasion 688  315 

to    protect    passage     of    mails,     commerce,     trade, 

etc (note)  691  317 

to  suppress  insurrection   etc 690  316 

to  suppress  unlawful  assemblages,  etc 690  316 

troops  act  only  under  orders  of  President,  not  of  civil 

officers 692  317 

troops  not  to  act  without  military  authority  therefor.  692  317 

Enemy : 

aiding  or  assisting,  Article  45 752  374 

captured  property  from  (see  Captured  Property)  .  .  <  g^g  ^^ 

harboring  or  protecting,  Article  45 752  374 

holding  correspondence  with  or  giving  intelligence  to, 

Article  46 753  375 

meaning  of  word 752  374 

misbehavior  before 749  372 

trading  with,  prohibited,  penalty 837  450 

Enforcement  of  the  Laws  (see  Employment  of  Troops  to 

Enforce  the  Laws) 688  315 

Enlisted  Men : 

absence  without  l«ave 739  359 

absence  without  leave,  forfeiture  for  (see  Forfeiture) .  .  739  360 


INDEX  587 

PAR.  PAGE 

Enlisted  Men  (continued)  : 

accountability  ior  effects  of  deceased  ..............   833  447 

accused  of  capital  crime,  or  offense  against  citizen,  to 

be  delivered  up  ...............................   766  396 

amenable  to  civil  suit  in  certain  cases  ..............    116  61 

amenable  to  military  law  at  all  times  and  places  .....     54  29 

amenable  to  Territorial  statutes  ..................   766  397 

appeal  from  adverse  decision,  regimental  court  lor 

doing  justice  ..................................   737  358 

arrest  and  confinement  of,  Article  66  ...........  |    7-,^  414 

arrest  of,  by  civil  authority  ......................   107  57 

arrest  of,  by  civil  authority  on  mesne  process  or  for 

debt  .........................................  697  319 

arrest  of  non-commissioned  officer  .................    104  55 

behavior  in  quarters  and  on  the  march  ............   762  383 

conduct  to  prejudice  of  good  order,  etc.,  Art.  62.  ...    769  411 

f    104  55 

confinement  of,  Art.  66  (see  Arrest)  ..............  <{     106  56 

I    773  414 

confinement,  release  from,  Art.  70  (see  Confinement).  777  415 


counsel  for 


** 


death  of,  disposition  of  effects,  Art.  126  ............   833  445 

deceased,  accountability  for  effects  of  .............   834  447 

discharge  of  (see  Discharge)  ......................   711  329 

discharged  and  in  confinement,  subject  to  Articles  of 

War,  etc.,  Appendix  B  ..............  •  .........  481 

dishonorable  discharge  of,  Appendix  D  (see  Discharge)  492 
dishonorable  discharge,  sentence  may  be  commuted 

by  President  ..................................   334  160 

divine  service,  attendance  and  behavior  at  .........   759  381 

doing  violence  to  persons  bringing  provisions,  etc.,  Art. 

56,  penalty  ...................................   763  383 

drunk  on  duty  (see  Art.  38)  .......................   745  364 

enlisting  in  another  regiment,  etc.,  without  regular 

discharge  ....................................  757  380 

enlistment  of  (see  Contract  of  Enlistment)  ..........   710  326 

entitled  to  discharge  at  expiration  of  term  of  enlist- 

ment .........................................  711  330 

failure  to  repair  to  place  of  parade,  etc.,  Art.  33  .....   740  360 

forcing  safeguard,  Art.  57  ........................   764  384 

forms  of  punishment,  appropriate  for  ..............   327  156 

found  drunk  on  duty,  punishment  for  ..............   745  364 

found  one  mile  from  camp,  Art.  34  ................   741  361 

fraudulent  enlistment  ............................   710  328 

furloughs,  by  whom  granted  ......................   718  335 

in  confinement  or  arrest  not  liable  to  be  delivered  to 

civil  authorities  under  Art.  59  ..................    Ill  59 

limit  of  confinement  before  trial  ..................   777  415 

lying  out  of  quarters,  garrison,  or  camp  ............   738  358 

may  be  detailed  as  clerk  for  judge-advocate  ........    164  84 

non-commissioned  officers,  how  placed  in  arrest.  .  .  .    104  55 

not  to  be  confined  except  by  order  of  officer  ........  104  56 


588  INDEX 


Enlisted  Men  (continued) : 

not  to  do  violence  to  persons  bringing  victuals 763  383 

not  to  hire  another  to  do  his  duty 743  363 

oath  of  enlistment,  Art.  2 709  325 

of  any  troops  in  service  of  U.  S.  subject  to  Articles  of 

War 771  414 

off  duty 769  412 

officer  arresting,  to  report  fact  to  their  commander.  .    104  56 

on  duty. .    745  364 

on  furlough  subject  to  arrest  as  any  other  citizen..  .    109  58 

period  of  confinement  before  trial,  Art.  70 106  56 

private  soldiers,  how  placed  in  arrest 104  55 

procedure  in  case  of  death  of 833  445 

punishments  for  (see  Punishments) 327  156 

quitting  guard,  platoon  or  division 747  371 

redress  of  wrongs  (see  Art.  30) 87  47 

reduction  from  first-class  to  second-class  private*,  Ap- 
pendix D * 492 

selling,  or  through  neglect  losing  or  spoiling  horse, 

arms,  clothing,  etc 724  337 

selling  or  wasting  ammunition 723  337 

sentinel,  sleeping  on  post  or  leaving  same 746  367 

statement  of  character  to  accompany  charges 305  145 

status  of 31  16 

subject  to  laws  of  two  jurisdictions,  military  and  civil, 

in  certain  cases 31  16 

surrender  certain  personal  rights 31  16 

to  repair  to  place  of  parade,  rendezvous,  etc 740  360 

to  report  deserter  enlisted  in  another  regiment 757  380 

use  of  profane  oath  by,  forbidden 760  382 

wronged  by  officer,  remedy  for 737  357 

Enlistment : 

a  contract  which  changes  status  of  person 710  326 

contract,  how  made  by  oath,  Art.  2 <    ^  ||g 

by  receipt  of  pay,  Art.  47 754  375 

discharge  from  (see  Discharge) 711  329 

fraudulent 710  328 

fraudulent,  of  minors 710  327 

limits  of  age  for 710  327 

may  be  annulled  by  executive 711  330 

oath  of,  Art.  2 709  325 

of  deserter  pardoned  or  restored  to  duty 710  328 

of  minors,  decisions  of  courts  regarding,  Appendix  E.  537 

of  minors,  prohibition  applies  to  volunteer  army.  . .  .   710  327 

of  minors,  when  permitted  and  when  prohibited. . . .   710  327 

prohibited,  of  a  deserter 710  328 

prohibited,  of  person  convicted  of  infamous  crime .  .  .   710  326 

status,  how  created |    ™  ^^ 

terminated,  how 711  329 

void,  of  insane  and  intoxicated  persons 710  326 

voidable  by  U.  S.  in  what  cases 710  326 


INDEX  589 

PAR.  PAGE 

Escape : 

of  prisoner  during  trial 156  81 

prisoners  to  be  halted  before  fired  upon 746  369 

rule  of  common  law  as  to  prevention  of 746  369 

Estoppel : 

presumption  of  law  (see  Evidence) 601  271 

Evidence : 

admissions  against  interest 583  262 

affirmative  and  negative 649  294 

against  interest 625  283 

as  to  character,  admissible  when 591  266 

as  to  motive,  admissible 651  295 

attorney  and  client 632  287 

before  court  of  inquiry 471  216 

burden  of  proof 604  273 

burden  of  proof,  how  determined 604  274 

burden  of  proof  in  collateral  issues 606  275 

burden  of  proof,  on  state  in  criminal  cases 605  275 

circumstantial 553  249 

classification  of,  according  to  character 552  248 

classified  with  respect  to  its  object 554  250 

common  law  rules  of 549  247 

common  law  rules  of,  modified  by  statute 550  247 

competency  of  witness  (see  Competency) 610  277 

conclusive 553  249 

confessions 584  262 

effect  of 585  263 

confidential  communication,  husband  and  wife 629  285 

attorney  and  client 632  287 

clergyman  and  physician 633  287 

corroborative 554  250 

court  of  inquiry,  record  as 478  219 

credibility  (see  Witnesses) 610  277 

cumulative 554  250 

declarations  by  defendant  or  by  his  authority 583  262 

definition 551  248 

departure  from  rules  of,  by  courts-martial <    fjg  247 

depositions  (see  Depositions) 251  122 

direct 573  258 

direct  and  indirect 552  248 

divided  according  to  its  nature 553  249 

documentary  (see  Documents) |    ~.~j~  ^-i 

dying  declarations 582  261 

experts 590  266 

foreign  laws,  judgments 559  253 

how  authenticated 560  253 

foreign  unwritten  law,  usages,  etc 560  253 

general  rules  governing  introduction  of j    j?5.5.  |^J 

given  in  former  proceedings,  when  admissible 588  264 


590  INDEX 

PAR.  PAGE 

Evidence  (continued): 

handwriting,  how  proved <  ^ .  9C.^ 

hearsay 553  250 

hearsay,  when  admitted 578  260 

identification  of  documents 567  257 

f  cci  261 

in  conspiracy |  65J  ^ 

'  ^50  248 

incriminating,  of  witness  (see  Criminating  Questions)  <  j^  2§g 

indirect,  circumstantial 576  259 

indirect,  collateral  facts 575  259 

indirect,  hearsay,  objection  to,  etc 577  259 

indirect,  when  admitted 574  259 

indispensable 553  250 

inscriptions 570  258 

in  trial  for  treason 587  264 

introduction  of,  when 232  116 

irrelevant,  admitted,  when 609  277 

irrelevant,  inadmissible 608  277 

judicial  notice,  classified 594  267 

court  may  require  production  of  books,  docu- 
ments, etc 596  269 

facts  admitted  by  parties 597  270 

f  594  267 

what  embraced  in  first  class •{  594  268 

L  594  269 

what  embraced  in  second  class 595  269 

why  accepted 593  267 

meaning  of  the  word 551  248 

of  two  witnesses  necessary  to  convict  of  false  muster.  .  721  336 

opinion,  when  admitted 589  265 

oral 569  257 

partial 553  249 

presumptive 553  249 

presumptive,  as  to  arms,  clothing,  etc.,  of  the  United 

States  in  hands  of  person  not  a  soldier 724  341 

presumptive,  classes  of,  defined 598  270 

presumptions,  conclusive,  defined 599  271 

presumptions,  disputable 602  272 

presumption,  estoppel 601  271 

presumption  of  fact,  defined,  etc 603  273 

presumptions  of  law 600  271 

presumptions  of  law,  defined  and  classified <  -Q^  271 

prima  facie  evidence 553  249 

primary  and  secondary 552  248 

primary,  original  and  best 556  251 

private  writings,  how  proved 562  254 

proceedings  of  court  of  inquiry,  admitted   when,  /  478  219 

Art.  121 \  828  437 

public  documents ".  557  251 

public  officers,  appointments  of 571  258 

public  records,  how  proved 561  254 


INDEX  591 

PAR.  PAGE 

Evidence  (continued): 

real 553  250 

"reasonable  doubt,"  what  is 604  274 

relevancy,  relevant  facts 607  276 

res  gestce 579  260 

res  gestos,  admissibility  of 580  261 

rules  of,  controlling  courts-martial 547  246 

rules  of,  modified,  as  before  courts-martial 550  247 

rules  of,  not  necessarily  enforced  by  courts  of  inquiry . .  471  216 

satisfactory 553  249 

secondary,  when  admissible 568  257 

substance  of  issue  and  matter  of  description  to  be 

proved 650  294 

substantive 554  250 

test  of 'admissibility  of  confessions 586  263 

to  be  "beyond  reasonable  doubt"  in  criminal  cases.  .   604  274 

voluminous  facts,  many  books,  etc 572  258 

war  department  records. 558  253 

witness,  competency,  and  credibility  (see  Competency; 

Credibility) 610  277 

Examination  of  Witnesses  (see  Witnesses) 238  118 

Examining  Boards  (see  Boards). 

Excusable  Homicide  (see  Homicide) 765  390 

Execution  of  Sentence  (see  Punishments;    Reviewing  Au- 
thority)    443  202 

Executive  Departments: 

records  as  evidence  (see  Documents) 557  251 

regulations  of 14  8 

Executive  Order : 

establishing  limits  of  punishment,  Appendix  D 484 

Exemption : 

from  service  in  militia,  who  exempted 831  441 

Experts : 

admissibility  of  evidence  (see  Evidence) 590  266 

as  witnesses 234  117 

employment  of,  authority  for 590  266 

hypothetical  question  to 590  266 

qualifications 590  266 

Expiration  of  Service 711  329 

False  Alarms : 

how  made,  penalty  (see  Art.  41) 748  371 

False  Certificates: 

as  to  absence  or  pay  of  officers  or  soldier,  penalty.  . . .   720  335 

by  officer,  chargeable  also  under  Article  61 768  410 

need  not  be  made  "knowingly  "  if  so  in  fact 720  336 

trivial  errors,  etc.,  not  chargeable  as  false  certificate.  720  336 

under  Article  60.  .                                              767  398 


592  INDEX 


r^     t          ..                                                                                                                                                               PAR.  PAGE 

False  Muster: 

penalty  for,  evidence  required  to  convict  of 721  336 

False  Receipts 767  403 

False  Reports: 

by  officer,  chargeable  under  Article  61 768  410 

False  Returns   (Art.  8): 

of  state  of  command 715  332 

statutory  provisions  for  punishment  of 837  450 

False  Signature  (Art.  60) 767  402 

False  Swearing: 

charged  under  Article  62  (see  Appendix  E).  .  /              767  ^ 

^  (notej  oOZ 

consists  in  what 767  401 

definition  of,  how  punishable  (see  Art.  60) 767  400 

(  767  398 

False  Vouchers,  Art.  60 .{767  402 

1 767  403 

Felonious  Homicide  (see  Homicide) 765  390 

Felony: 

conviction  of,  definition,  excludes  as  witness 616  280 

Field  Officers'  Court: 

abolished 80  44 

Files: 

loss  of  (see  Loss  of  Files;  Punishments) 341  162 

Finding: 

acquittal  (see  Acquittal) 299  143 

basis  of 292  139 

comments  in  connection  with 300  143 

doubt,  "reasonable  doubt,"  what  constitutes 294  140 

evidence  as  to  character,  influence  on 591  266 

exceptions,  substitutions 296  141 

of  lesser  kindred,  included,  offenses (    ^  \^. 

[    /bo  oyo 

on  specifications  must  support  charge 295  140 

record  of 405  185 

retiring  board,  is  conclusive  as  to  tacts,  when 512  232 

under  Art.  62,  when  charged  under  Art.  61,  and  the 

reverse 297  141 

voting  on 372  173 

tie  vote  (see  Voting. . ) 376  175 

Fines : 

accrue  to  the  U.  S 350  165 

definition  of,  differ  from  forfeiture  or  stoppage 350  165 

enforcement  of,  by  imprisonment 350  165 

Fleeing  from  Justice: 

what  constitutes 189  98 


INDEX  593 

PAR.    PAGE 

Flogging,  Art.  98. 

prohibited  ......................................  805     427 

Force  : 

employment  of  troops  in  enforcement  of  the  laws  (see 

Employment  of  i  roops  to  Enforce  the  Laws)  ....  688     315 

in  arrest  ........................................  90       50 

in  quelling  mutiny  ...............................  730     351 

Forcing  Safeguard  (see  Art.  57)  ........................  764     384 

Foreign  Laws,  Judgments,  etc.: 

how  authenticated  ...............................  560     253 

Forfeiture  : 

absence  without  leave  by  soldier  and  by  officer  ......  739     360 

accrues  to  United  States  only  ...................  |  |^     J6^ 

by  operation  of  law  .............................  351     165 

by  sentence,  must  be  specifically  stated  ............  340     162 

definition  of  ....................................  351     165 

how  affected  by  date  of  order  promulgating  action  on 

proceedings  ...................................  434     198 

limit  in  certain  cases,  Appendix  D  .................  492 

lee 

Forgery  : 

defined,  distinguished  from  counterfeiting  ..........  767     402 

of  signature,  Art.  -60  .............................  767     402 

Form: 

account  of  civilian  witness  in  government  employ,  Ap- 

pendix E  .  .  .  .  ----  .  ........  .  ...................  529 

account  of  civilian  witness  not  in  government  employ, 

Appendix  E  ..................................  528 

account  of  reporter,  Appendix  E  ...................  533 

for  charges,  Appendix  E  ..........................  494 

habeas  corpus,  by  State  court,  return  to,  Appendix  E  .  536 

habeas  corpus,  by  U.  S.  Court,  return  to,  Appendix  E  .  .  534 

interrogatories  and  depositions,  Appendix  E  ........  526 

monthly  report  of  summary  court  cases,  Appendix  E.  .  515 

proceedings  of  retiring  board,  Appendix  E  ..........  519 

record  of  garrison  court-martial,  Appendix  E  ........  516 

record  of  general  court-martial,  Appendix  E  ........  504 

record  of  regimental  court-martial,  Appendix  E  .....  518 

record  of  s  immary  court,  Appendix  E  .............  514 

return  of  service  of  subpoena,  Appendix  E  ..........  525 

revision  of  record  of  general  court-martial,  Appendix  E  512 

sentence  ,  Appendix  E  ...........................  522 

special  orders,  court-martial  sentence,  Appendix  E  .  .  .  534 

statement  of  service,  Appendix  E  ..................  503 

subpoena,  civilian  witness,  Appendix  E  ............  523 

subpoena,  civilian  witness,  for  deposition,  Appendix  E  524 

subpoena,  duces  tecum,  Appendix  E  ................  524 


{ 


594  INDEX 


PAR.  PAG1 

Form  (continued): 

summons  tor  military  witness,  Appendix  E ^23 

surgeon's  report  ot  alleged  deserter,  Appendix  E 503 

warrant  of  attachment  for  witness,  Appendix  E 525 

Fraud : 

dismissal  for,  publication  of  sentence,  Art,  100 807  428 

includes  what  offenses 807  428 

sentence  01  officer  on  conviction  of 807  428 

statutory  provision  for  punishment  of 837  450 

Fraudulent  Claims : 

against  the  United  States,  what  constitute 767  398 

jurisdiction  of  court-martial  over,  under  Art.  60 767  399 

Fraudulent  Enlistment: 

charge  and  specification  must  state  receipt  ot  pay  and 

allowances 710  328 

definition,  nature  of  offense 710  328 

form  of  charge  for,  Appendix  E 501 

how  proceeded  against 710  328 

voidable  by  United  States,  but  not  by  minor  or  parent, 

Appendix  E 537 

what  constitutes 710  328 

Frays : 

suppression  of  (see  Art.  24) 731  352 

Furloughs : 

by  whom  and  to  whom  granted,  length,  Art.  11 718  335 

Garnishee : 

officer  in  possession  of  government  funds  not  subject 

to 699  321 

Garrison : 

articles  of  war  to  be  read  to,  Art.  128 835  447 

false  alarms  in,  Art.  41  (see  False  Alarms) 748  371 

lying  out  of,  Art.  31 738  3c8 

Garrison  Courts-martial  (see  Courts-martial) . 

authority  for  (see  Arts.  82  and  83:  Courts-martial). ...     26  13 

circumstances  under  which  convened 76  41 

composition,  Art.  82 <    ygg  4  jg 

convening  authority,  Art.  82 789  4 19 

f    425  194 

disposition  of  records  of |    426  194 

form  of  record  for,  Appendix  E 516 

75  40 


j      76  41 

jurisdiction j      g^  *?• 

(    793  420 

limits  of  punishing  power,  Art.  83 790  420 

order  convening |      gg  ^ 


INDEX  595 

PAR.  PAGE 

Garrison  Courts=martial  (continued)  : 

f  74  40 

organization  ..................................  \  81  45 

I  789  419 

procedure  ...........................  .  ..........  75  41 

record  of..                                 ...................  (420  192 

record,  to  whom  forwarded  .  ......................  413  189 


reviewing  authority,  Art.  104 

testimony  before,  not  recorded  ....................  420  192 

when  to  be  convened  ...........................  j  15  .X 

General  Courts=martial  : 

a  statutory  tribunal  (see  Courts-martial)  ............  26  13 

acts  within  jurisdiction  not  subject  to  review  by  habeas 

corpus  ..................................  ......  52  28 

appeal  to,  from  regimental  court  for  doing  justice,  I 

Art.  30  (see  Appeal)  ...........  .............  1  ^  3|° 

composition  of,  to  be  composed  of  officers  .........  46  24 

convened  by  whom,  Arts.  72  and  73  (see  Convening 

Authority). 

convened  by  cammander  of  separate  brigade,  when.  .  41  21 

/  0*7  on 

convened  by  corps  commander,  when  ............  j  jx'  ^Q 

convened  by  division  commander  as  commander  of  a 

department,  when  .............................  35  19 

convened   by   the    President   as   constitutional   com- 

mander-in-  chief  ...............................  36  19 

convened    by  superintendent  of  the  U.  S.  Military 

AcaHeny,  for  trial  of  cadets  .....................  44  23 

disposition  of  record  of  ...........................  422  193 

eligibility  of  regular  officers,  for  trial  of  other  forces  .  50  26 

evidence  before,  introduction  of  ...................  232  116 

evidence  of  previous  convictions,  in  connection  with 

offenses,  Appendix  D  ..........................  491 

how  constituted  (see  Constitution  of  Courts-martial). 

judge-advocate   for  ..............................  148  76 

judgment  not  subject  to  review  ................  _____  52  28 

jurisdiction  of  ..........  .  ........................  52  28 

jurisdiction  as  to  persons  and  offenses  ..............  54  29 

jurisdiction,  exclusive,  in  what  cases  .......  .  ......  55  30 

jurisdiction  extends  to  minor  included  offenses  ......  61  32 

jurisdiction  in  time  of  war,  etc  .....................  60  31 

marine  corps  detached  for  service  with  army.  .  .  v  .  .  .  50  26 

members  inferior  in  rank  to  accused  ...........  .  .  .  .  49  25 

number  of  members  determined  by  convening  author- 

ity .........  :  .................................  46  24 

officers  who  may  be  assigned  to  duty  as  members  of  .  .  48  25 

pleas  before  (see  Pleas')  ...........................  177  93 

power  to  convene  or  to  act  on  proceedings  a  personal 

power,  cannot  be  delegated  .....................  39  20 


590  INDEX 


General  Courts=martial  (continued) : 

power  to  convene,  where  and  on  whom  conterred  (see  /  33       18 

Courts-martial) \  40       21 

proceedings  of,  court  convened  by  order  of  the  Presi- 
dent to  be  sent  to  Secretary  of  War 36       19 

procedure  of  (see  Courts-martial) . 

quorum 46       24 

record,  form  of,  Appendix  E 504 

record,  form  for  revision  of,  Appendix  E 512 

record  of  (see  Court-martial;  Record) 380     177 

responsibility  of  members  for  exceeding  legal  power. .  .  52       28 
review  of  proceedings  (see  Reviewing  Authority). 

revision  of  record 415     189 

territorial  jurisdiction 53       29 

to  be  convened  by  the  President,  when <      !;fi       iq 

who  may  convene,  in  time  of  peace  or  war,  Art.  72  ..     34       18 
who  may  convene,  in  time  of  war  only,  Art.  73 41       21 

General  Issue: 

plea  to  (see  Pleas). ! 204     103 

General  Officers: 

power  to  convene  courts-martial,  Art.  72 34       18 

sentence  of,  subject  to  approval   by  President,  Art. 

108 779     417 

General  Orders : 

as  evidence,  how  authenticated (note)     17         9 

Geneva  Convention : 

relating  to  sick  and  wounded  in  time  of  war 656     298 

Gentlemen : 

conduct  unbecoming  (see  Art.  61) 768     409 

Giving  Intelligence  to  the  Enemy: 

prohibited  (see  Art.  46) 753     375 

Good  Order : 

{761  ^?82 

7A9  Q«Q 

769  411 

Grain-fields : 

destruction  of,  Art.  55 762    383 

Guard : 

commander  of  (see  Commander  of  Guard). 

Guard  Duty  (see  Sentinels) 746    367 

Guerrilla  Marauders : 

death  sentence,  approval  and  execution  of;  may  be  /  812  431 

tried  by  court-martial  in  time  of  war,  Art.  105. .  .  \  812  430 

not  protected  by  laws  of  war 656  299 


INDEX  597 

PAR.     PAGE 

Habeas  Corpus : 

application  for,  by  officer  arrested  for  act  done  under 

authority  of  United  States 701     321 

brief  to  file  with  return  to  U.S.  courts,  Appendix  E. .  537 

cannot  be  used  to  serve  purpose  of  writ  of  error 457     210 

for  release  of  minors 710     327 

form  of  return  to  writ: 

issued  by  State  Court,  Appendix  E 536 

issued  by  United  States  Court,  Appendix  E.  .  .  534 

illegal  restraint  by  court-martial  without  jurisdiction.  63       32 

instruction  as  to  return  to,  Appendix  E 536 

indemnity  for  suspension  of  writ  by  executive  author- 
ity, when 680     311 

in  the  Philippines 230     114 

judgment  of  court-martial  not  subject  to  review  by. ..  187       97 
judgments  of  courts-martial  without  jurisdiction  may 

be  reviewed  by 27       14 

f  OO^I          "|  "I  O 

jurisdiction,  United  States  Court,  Appendix  E <  ^^ 

may  issue,  when  court-martial  exceeds  jurisdiction.  ..  457     209 
not  available  to  redress  errors  of  courts-martial  acting 

within  their  jurisdiction 52       28 

power  to  declare  martial  law  includes  power  to  sus- 
pend   679     309 

power  to  suspend,  ordinarily  in  Congress I  goQ     «,i  n 

President  suspends  privilege,  when <  goQ     QIQ 

responsibility  of  executive  or  military  commander  for 

suspension tSO  310 

returns  to,  instructions  for,  Appendix  E 536 

suspension  of  the  privilege  does  not  suspend  the  writ 

itself 681  311 

suspension  of  privilege  of  writ  included  in  power  to 

declare  martial  law 680  309 

suspension  of  writ  under  martial  law,  responsibility 

and  indemnity  for C80  311 

to  discharge  soldier 711  329 

to  secure  discharge  at  expiration  of  enlistment 711  330 

f  225  112 

witness  held  under  warrant  of  attachment  (see  At- I  996  112 

tachment) |  907 

Harboring  Deserter  (Art.  50) 757     380 

Harboring  Enemy  (Art.  45) 752     374 

Hiring  Duty  (Art.  36) 743     363 

Holding  Correspondence  with  Enemy  (Art.  46) 753     375 

Homicide  (see  Art.  58): 
classes  of: 

excusable 

felonious f  765     390 

justifiable 


I 


598  INDEX 

PAR.    PAGE 

Homicide  (continued)  : 

definition  01,  Article  58  ...........................  765  390 

manslaughter  ...................................  765  390 

murder  .........................................  765  392 

on  military  reservation,  tried  by  United  States  Courts  .  746  370 

sentinel  killing  escaping  prisoner  ...................  746  370 

within  jurisdiction  of  State,  tried  by  State  Court  ....  746  370 

Honorable  Discharge  (see  Discharge)  ...................  711     329 

Horse  : 

responsibility  for,  Art.  17  .........................  724     337 

Houses  : 

waste  or  spoil  in,  Art.  55  .........................  762     383 

Husband  and  Wife: 

as  witness  against  each  other  (see  Evidence)  ........  629     285 

Idiocy: 

as  a  defense  for  crime  ............................   270     130 

Idiot: 

incompetent  to  testify  as  witness  ..................   622     282 

Ignorance  : 

as  a  defense,  of  fact,  when  allowed  .................   281     134 

of  law,  no  excuse  (see  Defenses)  .............   279     133 

Impeachment  (see  Witness): 

of  accused,  as  witness  ............................  626  284 

use  of  record  of  court  of  inquiry,  Art.  121  ...........  828  437 

witness,  testimony,  how  impeached  ................  639  290 

Imposition  : 

on  sales  of  victuals,  etc.,  piohibited,  Art.  18  ........   725     342 

Imprisonment  (see  Arrest;  Confiement;  Punishments); 

beyond  expiration  of  service  ......................   320     153 

commissioned  officer,  Art.  65 


enlisted  men  (see  Punishments) 

hard  labor,  while  in  .............................   343  163 

in  military  prison  ..............................  {    ^  [g 

(  313  149 

in  penitentiary  or  State  prison  ..................  \  344  163 

I    345  163 

may  be  awarded  for  period  till  fine  is  paid,  when  ....   342  163 

meaning  of  word,  in  60th  Article  of  War  ............   319  152 

when  operative  ..................................  318  152 

Inclosures  : 

waste  or  spoil  in,  Art.  55  ..........................  762  383 

Included  Offenses  (see  Finding)  ........................  765  395 

Incompetency  of  Witness  : 

grounds  of  (see  Competency  of  Witnesses)  ..........   614  278 


INDEX  599 

PAR.  PAGE 

Incriminating  Evidence  (see  Evidence) 634  288 

Indian  Reservation : 

arrest  on,  by  troops 690  315 

Indemnity : 

for  acts  done  under  martial  law 680  311 

for  property  seized  in  time  of  war 659  299 

Infamous  Conduct,  Article  61 768  409 

In  amy : 

denned 616  279 

how  established,  before  court 618  281 

what  constitutes 616  2:0 

\\itnesb  incompetent  on  ground  of  . 616  279 

Infancy : 

as  a  defense,  capacity  to  commit  a  crime 269  130 

Infants : 

admissible  as  witnesses  when 621  282 

Inferior  Courts : 

composition  and    constitution   (see    Composition    of 

Courts-martial;  Constitution  of  Courts-martial), 
evidence  of  previous  convictions  in  connection  with 

cases,  Appendix  D 491 

garrison  court-martial,  charges,  papers  to  accompany, 

etc 131  68 

jurisdiction  of,  Art.  83 ' .  7GO  420 

plea  of  former  trial  applies  to 809  429 

{    425  194 

record,  disposition  of {    426  194 

I    427  194 

regimental  court-martial,  papers  to  accompany  charges  131  68 

statute  of  limitations  does  not  apply  to 191  99 

summary  court  may  take  judicial  notice  of  previous 

convictions,  when 131  68 

summary  court,  papers  to  accompany  charges 131  68 

Inferiors  in  Rank : 

trial  by,  Art,  79,  detail  determined  by  convening  (      49  25 

authority \    140  72 

(      4Q  25 

not  ground  for  excuse  of  member <    ^  ^ 

Inquiry  (see  Court  of  Inquiry). 

Insanity: 

affecting  competency  of  witness,  insane  person  incom- 
petent   622  282 

competency  determined  by  court 622  282 

lucid  intervals 622  282 

as  a  defense 271  130 

emotional  or  moral,  not  excuse  for  crime 272  131 

test  of  capacity  to  commit  crime 273  131 


600  INDEX 

PAR.    PAGE 

Insurrection   (see  Employment  of  Troops  to  Enforce  the 
Laws). 

authority  of  President  to  use  troops  to  suppress 680  311 

martial  law  applicable  to 670  304 

proclamation  of  President 678  308 

use  of  troops  in 688  315 

Intelligence : 

giving  to  the  enemy,  prohibited 753     375 

Intent : 

f        cytj  r          -j  OO 

drunkenness  as  affecting <    275 

must  be  set  forth  in  specification  when  necessary  ele- 
ment of  offense 121  64 

necessary  to  be  proved  in  crimes  under  the  58th  Art. 

of  War 765  395 

not  an  element  of  the  offense  in  certain  articles  of  war .  121  64 

to  remain  absent,  a  necessary  element  of  desertion  .  .  .  754  376 

Interest : 

incompetency  of  witness  on  ground  of  (see  Competency 

of  Witnesses) 625     283 

Interlineations : 

in  documents 565     256 

in  record  of  court-martial 417     191 

Interpreter : 

appointment  of,  duty,  how  paid 165  85 

introduction  and  oath  of 165  84 

necessity  for,  determined  by  court 165  85 

Interrogatories : 

for  depositions,  Art.  91  (see  Depositions) 254     123 

form  for,  Appendix  E 526 

Intoxication  (see  Drunkenness): 

affecting  competency  of  witness 624  283 

as  affecting  criminal  intent,  in  defense 275  132 

on  duty,  Art.  38 745  364 

Introduction  before  Court : 

of  accused 154  80 

of  counsel 154  80 

of  interpreter 165  84 

of  reporter 162  83 

of  witness 233  116 

Inventories : 

of  effects  of  deceased  officer 832     444 

of  deceased  soldier 833     445 

Irons : 

accused  not  to  be  in,  when  before  court 156       81 

Joint  Charges: 

when  drawn 729     350 


INDEX  601 

PAR.  PAGE 

Judge=advocate : 

absence  of 149  77 

administration  ot  oath  to  members  ot  court-martial,  /  174  90 

Art.  84 \  791  421 

(  249  121 

announces  close  of  prosecution <  ^QV  JCQ 

appointed  for  any  court-martial  by  officer  authorized 

to  appoint  the  court 45  23 

as  adviser  of  the  court 148  76 

as  counsel  tor  accused 148  76 

asking  question  after  close  of  examination  ot  witness .  246  121 
cannot   enter   a   "nolle    prosequi"  except  wi,tn  au- 
thorized   211  106 

certifies  accounts  of  civilian  witnesses  (see  Appen-  /  217  109 

dix  E) (note)  j.  530 

counsel  tor  accused  it  he  has  no  counsel,  duty 155  80 

death  or  disability  of 381  178 

duties  during  trial 151  78 

duty  of 148  76 

duty  of,  as  counsel  for  accused 157  81 

ot  court-martial,  by  whom  appointed 781  418 

introduces  witnesses,  when 233  116 

issues  writ  ot  attachment  for  witness  (see  Attachment)  221  110 

may  be  relieved  it  an  accuser  or  material  witness.  .'.  .  .  149  76 

may  challenge  member  of  court j  Y^  ~*j 

may  correct  minor,  but  not  a  material,  error  in  charge.  126  66 
may  correspond  directly  with  Judge- Advocate-General, 

etc.,  when 424  193 

may  testify  as  a  witness 233  116 

member  of  court  cannot  act  as 149  77 

not  subject  to  challenge 149  76 

oath  of.  by  whom  administered 792  422 

oath  of,  as  witness, 799  425 

by  whom  administered 799  425 

of  departments,  custodians  of  proceedings  and  records 

of  inferior  courts 425  194 

opening  ot  case 232  116 

performance  of  other  duties,  etc 146  75 

preparation  for  trial 150  77 

reply  of,  in  trials 291  137 

to  be  in  or  attached  to  record 404  185 

retires  when  court  is  closed 781  418 

right  to  challenge  members  of  court-martial 172  90 

summons  all  witnesses 212  107 

to  authenticate  record 151  78 

to  be  present  on  reconvening  of  court  for  revision. .  .  416  191 

to  certify  account  of  witness  making  deposition 258  124 

to  employ  reporter,  when  authorized 163  84 

to  forward  proceedings  of  court-martial  to  reviewing 

authority  (see  Record) 820  434 

to  furnish  copy  of  charges,  etc.,  to  accused 129  66 

to  keep  record  of  court .  151  78 


602  INDEX 


PAR.  PAGE 

Judge=advocate  (continued) : 

to  prosecute  in  name  of  the  United  States 797  423 

to  sign  adjournments  from  day  to  day 311  188 

to  withdraw  when  court  is  closed 152  78 

to  write  finding  and  sentence  in  record 382  178 

who  may  appoint,  how  designated 148  76 

Judge=Advocate=Qeneral : 

custodian  of  records  of  courts-martial 422  193 

opinions  of,  approved  by  Secretary  of  Wat  binding 

on  military  establishment '.  25  12 

f  27  13 

Judgments,   of   courts-martial    conclusive   when    having!  27  14 

jurisdiction j  30  15 

I  62  32 
Judicial  Notice  (see  Evidence) : 

facts  recognized  by  courts 593  267 

matters  of  public  interest  within  knowledge  of 

all  persons 594  268 

matters  which  court  is  directed  by  statute  to 

notice 594  269 

matters  which  take  place  in  presence  of  court .  594  2b'9 
matter  within  knowledge  of  particular  court,  as 

.    its  officers,  official  records,  etc.  . . . 594  269 

public  laws.  . 597  267 

of  foreign  laws,  or  laws  of  another  State,  not  taken, 

(note  4)  594  267 
Jurisdiction : 

amenability  of  military  person  to  trial  in  civil  courts. .  56  30 
amenability  to  military  trial  (see  Amenability). 

defined. 1  1 

double  amenability  of  military  persons 56  30 

military,  defined 2  1 

of  a  State,  denned 1  1 

of  civil  courts  over  enlisted  men  in  certain  cases.  ...  31  16 
of  officer  authorized  to  convene  courts-martial,  com- 
plete within  the  limits  of  his  command 40  21 

of  state  courts  over  offenses  committed  within  their 

limits 766  397 

of  Territorial  courts,  over  offenses  committed  on  mili- 
tary reservation 766  397 

over  act  committed  in  one  State  or  district  taking 

effect  in  another 765  392 

over  act  which  is  an  offense  against  both  civil  and 

military  law 112  59 

over  homicide  on  military  reservation 746  370 

over  offenses  committed  on  territory  ceded  to  United  I  115  60 

States 1  766  397 

waiver  of  objection  to,  will  not  confer 179  94 

Jurisdiction  of  Courts=martial : 

acquittal  by  civil  court  not  bar  to  trial  by  militaiy 

court  (see  Courts-martial) 56  30 

after  expiration  of  service 64  33 


INDEX  603 

PAR.  PAGE 

Jurisdiction  of  Courts-martial  (continued): 

as  to  offenses 54  29 

as  to  persons 55  30 

conditions  necessary  to  show 67  35 

criminal  in  character 54  29 

defined 52  28 

does  not  extend  to  civil  cases 28  14 

facts  necessary  to  sustain 179  93 

for  trial  of  persons  in  service  toi  unauthorized  trade, 

with  State  in  insurrection  or  rebellion 837  450 

in  certain  cases 31  16 

must  be  shown  affirmatively  by  its  proceedings 57  31 

not  exclusive  as  to  what  acts 56  30 

not  lost,  after  assumed,  by  escape  of  prisoner 156  81 

of  court  illegally  constituted,  cannot  be  waived 206  104 

over  citizen  employees,  retainers  to  camp,  etc.,  ame- 
nable to,  Art.  63 770  413 

over  persons  in  service  trading  in  captured  property. .  838  450 

over  persons  serving  with  armies  in  the  field,  Art.  63. .  770  413 

plea  of  "guilty  "  admits  jurisdiction  of  court 206  104 

plea  to,  by  accused 166  86 

f  177  93 

plea  to.  effect  if  sustained j  jyg  g^ 

statutory,  cannot  be  inferred 57  31 

taken  before  expiration  of  service,  by  arrest,  etc.,  con- 
tinues after  expiration,  when 65  34 

territorial  limit 53  29 

to  try  cases  of  fraud,  false  return,  and  embezzlement, 

etc.,  by  persons  in  service 837  450 

what  necessary  to  be  shown <  Q7Q  •,  -7 

(^  o  i  y  jii 

Jurisdiction  of  General  Courts-martial  (see  Jurisdiction  of 
Courts-martial) : 

exclusive  over  whom,  and  in  what  cases 55  30 

over  offenses  "in  time  of  war  "  765  385 

over  officers  dropped  for  desertion 66  34 

over  spies 836  448 

statute  of  limitations  in  case  of  desertion 65  34 

to  be  ascertained  before  trial  begins 52  28 

Jurisdiction  of  Inferior  Courts-martial  (Art.  83) 790  420 

garrison  courts-martial 75  40 

regimental  courts-martial 77  42 

summary  court 79  42 

Justifiable  Homicide  (see  Homicide) 765  390 

Larceny : 

classes  of,  Art.  58 765  386 

definition  of,  punishment  for 765  385 

form  for  charges  for,  Appendix  E 502 

intent  in 765  386 

of  property  of  United  States 767  404 

Lawful  Order : 

disobedience  of,  Art.  21 728  344 


604  INDEX 


PAR.  PAGE 

Law: 

f  3  2 

military  (see  Military  Law)  .....................  \  6  3 

I  7  5 

the  unwritten,  consists  ot  what  ....................  19  10 

L?WS  of  the  Land: 

include  municipal  ordinances,  etc  ..................    107  57 

Laws  of  War  : 

acts  of  commander  and  armies  governed  by,  in  war- 

fare ..........................................   656  298 

a  part  of  international  law  ........................   652  296 

as  to  property  destroyed  in  warfare  ................    655  298 

convention,  regarding  sick  and  wounded  ............   656  298 

contributions,  by  whom  levied  ....................   657  299 

effect  of  existence  of  war  upon  citzens  and  property.  .  .    654  297 

general  orders  100,  United  States  Army,  1863  .......   653  297 

governing  armies  of  the  United  States  ............  /    *|52  296 

[  ooo  ^y  / 

govern  military  commander,  when.  .  .  ..............   654  298 

indemnity  for  property  seized  .....................   659  299 

f  5  2 

martial  law  (see  Martial  Law)  ...................  \        6  4 

I  668  303 

military  government  (see  Military  Government).  .  .  <    gJj  g^r 

not  protecting  guerillas  ...........................   656  299 

occupied  territory,  property  in  ....................   659  299 

protection  of  certain  individuals  and  property  .......   656  299 


regulated  by  agreement  and  convention 


|  ®j*^  299 

requisitions,  by  whom  made  ......................  658  299 

spies,  punishment  of  (see  Spies)  ...................  836  448 

when  in  force,  whence  derived  ....................  652  296 

Leading  Questions  : 

admissible  when  ..............................  !  |*8  121 

definition  of  ....................................  248  121 

121 


objections*)  .................................. 

test  of  .................................  '  ........  248  121 

Leaving  Post: 

by  sentinel  (see  Art.  39)  ..........................  746  367 

Legal  Precedents: 

approved  decisions  of  courts-martial  .......  .  .......  22  12 

decisions  and  opinions  of  heads  of  departments  .....  23  12 

decisions  of  courts,  when  binding  on  other  courts  ....  22  11 

decisions  of  courts,  when  to  be  followed  .............  21  11 

stare  dedsis,  doctrine  of  ..........................  22  12 

Liability  of  Members  of  Courts-martial  : 

for  exceeding  legal  jurisdiction  ..................  |  ||  ?J 


INDEX  605 


IL   »        V\y      J  VIC*!   LIMA      LwC4.TT     • 

extends  to  whom,  and  where < 


PAR.  PAGE 

Liability  to  Martial  Law : 

"  5  2 

676  308 

Liability  to  Military  Law: 

begins  when  (see  Amenability) 31  16 

ends  when  (see  Discharge) 711  329 

f  3  2 

extends  to  whom,  and  where <  ^  29 

of  civilians,  Art.  63 770  413 

of  civilians  in  time  of  war 836  448 

of  militia,  Arts.  64,  124 

of  volunteers,  Arts.  64,  123 

Limitation,  Statute  of  (Art.  103),  (see  Statute  of  Limita- 
tions)   810  429 

Limit  of  Punishments : 

(  325  155 

executive  order  prescribing  (see  Appendix  D) j  4g4 

power  of  President  to  establish 325  155 

Loss  of  Files : 

applicable  to  officers  only /  ||6  156 

effect  of  sentence  (see  Punishments) 341  162 

Loss  of  Record : 

effect  of  (see  Record) 414  189 

Lurking  as  Spies 836  448 

Lying  Out  of  Quarters,  Art.  31 738  358 

Majority : 

voting,  decides  in  what  cases,  exception 371  173 

voting  on  death  sentence,  number  necessary 375  174 

Making  Good  Time  Lost: 

on  conviction  of  absence  without  leave 739  360 

through  desertion,  Art.  48 j  ^  ^g 

waiver  of  requirement  by  commanding  officer. .......  739  360 

Mandatory  Sentences: 

cannot  be  lessened  or  increased 325  155 

death,  Art.  57 764  384 

dismissal 332  159 

Manslaughter : 

classes  of,  Art.  58 765  390 

corpus  delicti  to  be  proved 765  393 

definition  of 765  390 

involuntary 765  391 

superior  officer  in  enforcing  discipline 765  392 

voluntary 765  390 


606  INDEX 

PAR.    PAGE 

»  Marches  : 

behavior  on,  Art.  55  .............................  762  383 

command  on,  when  different  corps  join,  Art.  122  ....  829  437 

good  order  on,  Art.  54  ............................  761  382 

reparation  for  injuries  done  on,  Art.  54  ...........  \    £];{     for 

^      /Dl       OoZ 

Marine  Corps: 

assigned  for  duty  with  army,  Art.  78 


command,  when  joining  or  on  duty  with  the  army, 

Art.  122  ......................................  829  437 

court-martial  for,  when  joining  or  on  duty  with  the 

army  .........................................  50  26 

relative  rank,  when  joining  or  on  duty  with  the  army  .  .   829     437 

Married  Woman: 

constrained  by  husband  (see  Defenses)  .............   288     136 

Markets  : 

disturbing,  reparation  for  injury  to,  Art.  54  ........   531     239 

Marking  the  body  : 

as  punishment,  prohibited,  Art.  98  ................   805     427 

Martial  Law: 

(CO 

as  applied  to  the  army  .........................  |    66Q     3Q4 

denned  ..................................   670     304 

/CO 

at  home,  or  as  a  domestic  fact  ..................  <    ggg     394 

denned  ..................................   671     304 

at  home,  ceases  with  necessity  for  its  existence  ......   677     308 

commander  may  arrest  suspected  persons  and 

forcibly  enter  premises  to  do  so  ...........   674     307 

commander  may  continue  civil  courts,  officers, 

etc  .........  ...................  .  .  ......  674     307 

commander  subject  to  future  responsibility  for 

unjust  or  arbitrary  action  ................   674    307 

declaration  of,  effect  to  suspend  privilege  of 

writ  of  habeas  corpus  ............  .  ........   679     308 

executive,  governs  by  military  force,  etc.,  is 

supreme  ...............................   6£0     309 

exists  only  when,  declaration  of  ............   672     306 

justified  when  .............................   671     305 

not  applicable  when  civil  power  is  still  supreme  .  671  306 
not  provided  for  in  the  Constitution  and  justi- 

fied only  by  necessity  ....................   671     305 

power  to  declare,  includes  power  to  suspend 

writ  of  habeas  corpus  .....................   679     309 

prevails  only  when  .........................   671     305 

proclaimed  by  executive  authority,  when,  dec- 

laration of  ............................  .  .   673     306 

proclamation  commanding  insurgents  to  dis- 

perse not  a  declaration  of  martial  law  .......   678     308 

responsibility  of  commander  ................  675  307 


INDEX  607 

PAR.    PAGE 

Martial  Law  (continued)  : 

responsibility  of  executive  for  suspension  of 

writ  ot  habeas  csrpus  under  ...............   680     310 

results  only  Horn  public  exigency  ...........   671     305 

superior  to  all  law  while  necessity  exists  ......   672     306 

suspension  ot  privilege  of  writ  ol  habeas  corpus, 

effect  of  ................................   681     311 

suspension  ol  privilege  ot  writ  ot  habeas  corpus 

under  declaration  ot  ,  not  assumption  ot  power 

ol  Congress  .............................   680     309 

definition  of..  ..... 


divided  into  phases,  "as  applied  to  army,"  and  as  j  5  3 

"a  domestic  tact"  ............................  \  669  304 

duty  ot  commander  .............................  6  4 

effect  of  declaration  of,  military  commander  supreme 

power  ......  .  .  ..............  .  .................  674  307 

military  commission  under  (see  Military  Commissions)  682  312 

phases,  in  which  regarded  by  War  Department  ......  669  304 

responsibility  of  commander  .....................  6  4 

territorial  limitation  .............................  676  308 

to  whom  and  when  applicable  ....................  5  3 

will  ot  commander  .............................  '.  ~7  ,  ™- 

Material  Witness: 

member  ot  court  as  (see  Challenges)  ................  171  89 

Mayhem: 

definition  of,  in  what  it  consists,  intent  .............  765  389 

Meadows  : 

waste  or  spoil  of,  prohibited,  Art.  55  ...............  762  383 

Medical  Officer: 

on  duty  when,  Art.  38  ...........................  745  365 

need  not  be  placed  in  arrest  until  trial  .............  93  52 

Medical  Report: 

to  accompany  charges  in  case  of  desertion  ..........  130  67 

Meeting  of  Courts-martial  (see  Courts-martial)  .........  153  79 

Members  of  Boards  (see  Boards)  .......................  525  237 

number,  and  oath  of  .............................  525  237 

Members  of  Courts-  martial: 

{1  'S'^  SO 

385  179 

{69  S7 

794  423 

challenges  to  (see  Challenges)  ...................  .  166  86 

commissioned  officers  ................  ............  133  69 

l  t  ro  70 

deliberations,  closed  sessions  ...................  |  4QQ  184 


60S  INDEX 


PAR.  PAGE 

Members  of  Courts-martial  (continued)  : 

detail  ot,  determined  by  convening  authority  (see  Con- 

vening Authority)  .............................   137  71 

eligibility  of  (see  Courts-martial)  ...............  |    ^  26 

liable   to  suit  for  damages  tor    illegal    punishment 

awarded  .....................................     30  15 

marine  corps  as,  Art.  122  ......................  |    1|4  ^70 

militia  as  .......................................   134  70 

new  member  added  to  court,  to  take  oath  ...........  791  422 

number,  quorum  ..............................  {    ^  J| 

oath  of,  by  whom  administered  ...................     791  421 

performance  ot  other  duties  ......................    146  74 

president,  authority  and  duties  of  ................    141  72 

rank  of,  as  to  accused  ...........................  |    J^j  ™ 

relief  ot  (see  Quorum)  .............................    145  74 

to  be  sworn  in  each  particular  case  ..................   791  422 

volunteers  as  ....................................    134  70 

voting,  order  of  .................................   802  426 

witnesses  .................  ......................    171  89 


Members  of  Court  of  Inquiry: 

number  ot  ......................................   461  213 

oath  ot  (see  Courts  of  Inquiry)  ....................   824  436 

Military  Academy: 

general  courts-martial  for  cadets  ..................     44  23 

power  of  Superintendent  as  convening  and  reviewing 

authority  ....................................     44  23 

professors,  cadets,  detachments,  and  band  part  of  the 

army=  .......................................  706  324 

protessors  eligible  for  detail  on  courts  .....  .  ........     48  25 

regulations  tor,  force  of  ...........................     15  9 

summary  dismissal  of  cadets  for  hazing  ............  336  161 

Military  Boards  (see  Boards)  ........................  {    ^  237 

Military  Code  of  the  United  States: 

history  ot,  whence  derived  ........................       8  5 

Military  Commissions: 

are    tribunals    recognized  as  belonging  to   laws   of 

war  .........................................     26  13 

authorized  by  laws  of  war,  in  military  government  and 

under  martial  law  .............................  682  312 

civilians  may  be  tried  by,  under  martial  law  .........   682  312 

composition  of,  recorder  .........................  684  313 

constitution,  by  what  authority  ...................  683  312 

disposition  of  records  of  ..........................   422  193 

judgments  not  effective  till  approved  .............  687  314 

jurisdiction,   where  exercised,  over  what  classes  of 

offenses  ..................................  685  313 


INDEX  609 

Military  Commissions  (continued) : 

legally  approved  judgments  not  subject  to  review  by 

civil  courts  except  on  questions  ol  jurisdiction 687  314 

may  try  civilians  undei  martial  law 671  305 

m*yfysp«« {  8i  448 

no  jurisdiction  in  civil  suits,  etc 685  313 

no  jurisdiction  to  try  civilian  where  Federal  courts  are 

in  exercise  ol  powers.  . 685  314 

procedure  similar  to  courts-martial 686  314 

recognized  by  statute  and  by  decisions  ol  courts 682  312 

tribunals  organized  under  the  laws  of  war  and  martial 

law 32  17 

Military  Force  in  Enforcement  of  Law  (see  Employment 

ol  Troops  to  Enforce  the  Laws) 688  315 

Military  Government: 

all  functions  or  government  united  in  the  commander.  661  300 
authority  of  commander  begins  with  fact  of   occupa- 
tion   662  300 

commander  amenable  to  his  own  country  only 665  302 

commander  exercises  both  civil  and  military  rule 663  301 

commander  liable  for  torts,  when  and  where 665  302 

commander  not  liable  for  acts  authorized  by  his  gov- 
ernment   665  303 

commander,  power  to  make  and  enforce  laws  and  to 

continue  or  to  appoint  officials 663  301 

commander  presumed  to  make  proper  use  of  author- 
ity    666  303 

commander  represents  executive  power  of  nation.  .  .  .   661  300 
commander's  power  limited  only  by  laws  of  war  and  of 

his  country 662  300 

commander's  responsibility  in  discretional  matters .  .  .  666  303 

continues  after  peace  till  Congress  acts 667  303 

defined,  exists  when  and  where 4  2 

has  no  code,  consists  of  what 6  3 

municipal  laws,  courts,  etc.,  continue  in  force  unless 

superseded  by  commander 664  301 

powers  of  commander,  how  regulated 665  302 

responsibility  of  commander |    5^5  302 

tribunals  under 664  301 

what  constitutes,  derives  authority  from  laws  of  war  •  •   660  300 

will  of  commander,  how  exercised  and  controlled  .  .  .  I    ~® 

\    665  302 

Military  Governor  (see  Military  Government) 660  300 

Military  Jurisdiction: 

defined,  to  whom  applicable 2  1 

includes  what 2  2 

Military  Law: 

army  regulations,  orders,  etc 11  6 

Articles  of  War 8  5 


610  INDEX 


Military  Law  (continued): 

consists  of  what  in  the  United  States 7  5 

customs  and  precedents 19  10 

defined 3  2 

of  what  composed 6  3 

proper  use  of  term 3  2 

usages 20  11 

Military  Occupation  (see  Military  Government): 

test  oi 662  301 

Military  Offenses: 

character  ot  criminal 54  29 

statutory 266  123 

when  purely  military 317  151 

f      26  13 

jurisdiction  over,  statutory •{      54  29 

I      57  31 

punishments  of  (see  Punishments). 

-    statute  of  limitation,  Art.  103 810  429 

territory  of,  does  not  affect  jurisdiction <        £ 

l     oo  zy 

Military  Prison: 

character  of  offenses  involving  sentence  thereto 317  151 

Fort  Leavenworth (note)  317  152 

Military  Prisoners: 

place  of  imprisonment  (see  Sentence;  Punishment)..   317  151 

subject  to  Articles  of  War,  and  other  laws 64  33 

Military  Reservation: 

jurisdiction  over  offenses  committed  on <    ^^  „  ~~ 

method  of  securing  arrest  of  military  persons  on,  for 

offenses  against  laws  of  the  land ,  Art.  59 107  57 

Military  Tribunals: 

authority  for,  classified,  executive  agencies 26  13 

composition  of  courts-martial 46  24 

composition  of  military  commissions 684  313 

constitution  of  courts-martial  (see  Constitution  of 

Courts-martial) 33  18 

constitution  of  military  commission  (see  Military 

Commissions) 683  312 

military  commissions <    gg2  ^^ 

not  a  part  of  judicial  system 27  13 

statutory  (see  Courts-martial) 26  13 

Militia: 

act  organizing,  etc.;  consists  of  whom 831  440 

called  into  active  service,  by  whom  and  when 831  441 

conscription,  right  to  exercise 831  443 

courts-martial  for,  to  consist  of  militia  officers  only          51  26 
emergency  for    call  of,  quotas,  etc.,    determined   by 

President 831  442 


INDEX  611 


Militia  (continued)- 

exemption  from  service  in,  who  exempted  ..........  831  441 

in  State  service  .................................   831  443 

officers  of,  eligibility  as  members  ot  courts-martial  -  {    j§  ?Q 

organization,  how  called  into  service,  period  of  ......   831  441 

pay  and  allowances  ot  ............................   831  442 

period  for  which  called  into  service  ................   831  443 

powers  of  President  over  .........................   831  440 

rank  and  grade  of  officers,  etc  ......................   831  442 

subject  to  rules,  etc.,  governing  regular  army  when 

called  forth  ...................................    831  442 

Minor  Included  Offense  (see  Finding)  ..................   297  141 

Minors  : 

decisions  of  courts  as  to  enlistment,  Appendix  E  .....  537 

enlistment  of,  and  release  .........................   710  327 

not  void  but  voidable  at  option  of  the  United 

States  ..................................   710  327 

habeas  corpus  for  release  of  ........................   710  327 

right  of  United  States  to  try  for  desertion  paramount 

to  right  of  parent  or  guardian  .........  :  .........   754  378 

subject  to  charges  for  fraudulent  enlistment  .........   710  327 

Misapplication  or  Misappropriation: 

of  public  funds  or  property,  Art.  60  (see  Property).  .  .  767  398 

Misbehavior  : 

before  the  enemy,  how  exhibited,  Art.  42  ...........   749  372 

in  presence  of  court-martial,  Art.  86  ...............     68  35 

Mitigation  : 

definition  of  .............  .......................   450  207 

executed  sentence  cannot  be  mitigated.  ...  .........   443  202 

exercised  by  reviewing  authority  at  time  of  action  on 

sentence  ......................................   450  206 

limitation  on  reviewing  authority  in  death  sentence  .  .  445  203 
not  pardoning  power,  but  incident  to  power  to  order 

courts  and  act  on  sentence  ......................   450  206 

of  sentence  to  penitentiary  ........................   451  207 

of  unexecuted  sentences  ..............  ............   452  207 

plea  for,  because  of  non-publication  of  Articles  of  War.  835  448 

power  of  ,  in  summary  court  cases  (see  Appendix  B).  j  .9^ 

power  vested  in  reviewing  authority  ...............   447  206 

whence  derived  ............................   446  205 

punishments  susceptible  of  .......................   450  207 

reviewing  authority  may  mitigate  sentence  .........   443  202 

reviewing  authority  may  mitigate  sentence  of  dishon- 

orable discharge  with  forfeiture  ..................   454  208 

sentence  of  dismissal  of  an  officer  not  subject  to  ......   445  203 

Modification  of  Charges  (see  Charges  and  Specifications)  .  .   126  65 

Money  Accounts  (see  Arts.  8.  60;  Returns)  ..............  715  332 

blank  receipts  ...................................   767  403 


612  INDEX 

PAR.  PAGE 

Money  Accounts  (continued): 

false  vouchers , . . . .   767  400 

short  payments 767  402 

Motive  to  Commit  Crime 651  295 

Murder : 

corpus  delicti  to  be  first  proved 765  393 

definition  of,  includes  malice  aforethought 765  392 

malice  aforethought  essential  to  the  crime,  how  estab- 
lished     765  393 

no  degrees  of  the  crime  in  United  States  Statutes. . .  765  393 
penalty  for,  when  committed  within  exclusive  jurisdic- 
tion of  United  States 765  393 

period  within  which  death  must  result 765  392 

place  of  jurisdiction  over  act 765  392 

Muster : 

absent  officers  and  men  to  be  certified 719  335 

defined,  how  made,  false  muster 712  330 

penalty  for  taking  pay,  etc.,  for 713  331 

rolls  for 712  330 

Mutiny : 

beginning,  exciting,  or  joining  in,  Art.  22 <    Z~J  ?cn 

I    /  zy  oou 

defined,  penalty  for 729  348 

duty  to  inform  of,  Art.  23 730  350 

force  used  in  quelling 730  351 

suppression  of {    *»  350 

Neglects : 

under  62d  Art.  of  War,  what  constitute;  when  charge- 
able   769  412 

New  Members: 

courts-martial : /    2jj®  ^ 

New  Trial: 

when  granted  and  by  whom 200  102 

Nolle  Prosequi: 

definition  of,  and  effect 210  106 

who  may  enter,  in  military  trials 211  106 

Non-commissioned  Officer : 

not  to  connive  at  the  hiring  of  duty  (see  Enlisted  Afen)  744  363 

reduction  of,  authorized  in  certain  cases.  Appendix  D.  491 

to  report  deserter  enlisted  in  another  regiment 757  380 

Oath: 

affirmation  may  take  the  place  of 615  279 

boards,  of  members  and  recorder 528  238 

f       CQQ  OOO 

witnesses  before  (see  Appendix  C <  jjg 


INDEX  613 

PAR.  PAGE 

Oath  (continued)  : 

boards  of  examination  for  promotion,  of  members  and 

recorder  .....................................  517  234 

of  witnesses  before,  examination  of,  the  same 

as  in  retiring  boards  ....................   520  235 

courts-martial,  of  judge-advocate,  Art.  85  ..........  174  91 

of  judge-advocate  as  witness,  administered  by 

president  of  court  .......................  233  117 

of  members,  Art.  84  .......................   174  90 

administered  by  judge-advocate  ......   791  421 

new  members  .to  take  ......................  791  422 

of  witnesses,  administered  by  judge-advocate.  238  118 

courts  of  inquiry,  of  members  and  recorder 


of  witnesses  before  ........................  470  216 

enlistment,  Art.  2  ...............................  709  325 

of  interpreter  ..................................   165  84 

of   reporter  .....................................   162  83 

retiring  board,  of  members  and  recorder.  .  .  .  ® 


witnesses    before  ..........................  504  230 

voir  dire  of  member  of  court-martial  challenged  ____ 

of  witness  .................  .  ..............  237  118 

witness  making  deposition,  administered  by  whom.  .  256  124 
Oaths: 

profane,  use  of,  prohibited  ........................  760  382 

Obedience  to  Orders  (see  Orders), 
Objection  to  Members  (see  Challenges). 

Offenses: 

absence  without  leave,  stoppages  on  Conviction  of  .  .  353  167 

against  United  States,  bail,  by  whom  fixed  .........  840  454 

capital,  not  chargeable  under  62d  Art.  of  War  ......   769  411 

(   313  149 

I       014  1  en 

certain,  subject  to  sentence  to  penitentiary  .......  \    ^15  150 

[    316  150 

certain,  triable  by  court-martial  in  time  of  war  .....  316  150 

common  law  crimes  ..............................  265  128 

common  law  crimes,  elements  necessary  to  constitute  .  265  128 

/       O^3  C  1  0Q 

common  law  crimes  include  intent  and  an  act  .  .      .  <    nco 

\    2o8  1  30 

death  penalty  for  certain,  effective  in   time  of  war 

without  approval  of  President  ..................   812  430 

intent  may  or  may  not  be  element  of  statutory  crime  |   ^§6  129 

necessary  in  common  law  crimes  ............   265  128 

lesser  kindred  offense  ............................   297  141 

limits  of  punishment  for,  by  executive  order,  Appen- 

dix D  ........................................  484 

when  not  prescribed,  Appendix  D  ...........  492 

not  specified  in  other  Articles  of  War,  when  cognizable 

under  Art.  61  or  Art.  62  ..................               54  29 


614  INDEX 


PAR.  PAGE 

Offenses  (continued) : 

penalty  of  death  may  be  awarded  for  what . .  }?£ 

[    661  159 

purely  military,  not  subject  to  penitentiary 804  427 

statute  of  limitation  in  regard  to 810  429 

statutory,  intent  not  necessarily  an  element  in  all.  .  266  128 

Offering  Violence: 

to  superior  officer,  Art.  21 728  344 

Office: 

disqualification  for,  Arts.  6,  14 • .  (    Ji?  ?oi 

[     Y^il  oou 

Officers : 

absent  on  leave,  subject  to  arrest  as  any  other  citizen.  109  58 

absent  without  leave,  how  charged 739  359 

accountable  tor  property  of  deceased  officer  or  soldier, 

responsibility  of 834  447 

accused  of  capital  crime  or  offense  against  citizen,  to 

be  delivered  up 766  396 

acts  unbecoming,  etc.,  not  necessarily  affecting  mili- 
tary service  aiiect ly v 768  410 

amenable  to  civil  suit  in  certain  cases 116  61 

amenable  to  Territorial  laws 766  396 

arrest  and  confinement  of |      ^2  5* 

arrest  by  civil  authority 107  57 

arrest,  duration  of,  charges  not  served 778  416 

arrested  for  official  act  and  held  by  State  authority, 

action  to  be  taken ,  701  321 

before  board  of  examination  for  promotion,  finding  of 

incapacity  for  duty  not  final 524  236 

before  retiring  board  (see  Retiring  Boards) 486  223 

cannot  be  compelled  to  testify  against  himself  506  230 

may  waive  right  to  be  heard 501  228 

right  to  counsel,  examination  of  witnesses,  etc.  502  228 

behavior  at  divine  service,  attendance  at 759  381 

behavior  in  quarters  and  on  the  march 762  383 

board  of  examination,  may  challenge  members 518  234 

commanding  companies,  etc.,  accountable  to  colonel 

for  arms,  etc 717  334 

commanding  guard,  to  receive  and  keep  prisoners  (105  56 

and  to  make  report \  774  414 

commanding,  not  to  lay  duty  or  imposition  on  victuals, 

etc 725  342 

commanding,  to  aid  civil  officers  in  arrest  of  offenders 

under  his  command 107  57 

commanding,  to  certify  as  to  officers  and  enlisted  men 

absent  at  muster 719  335 

competent  to  appoint  courts-martial  may  appoint 

judge-advocate 781  418 

composition  of  board  of  examination  for  promotion  ...  516  233 

conduct  unbecoming,  etc.,  acts  which  constitute  . . 


INDEX  615 


PAR.  PAGE 

Officers  (continued)  •    . 

convicted  of  cowardice  or  fraud,  sentence 807  428 

death  of,  procedure 832  444 

deceased,  accountability  for  effects  of 834  447 

deceased,  disposition  of  body,  expense  of  funeral ....  832  445 
deceased,   inventory   ot    public    property    under    his 

charge 832  444 

desertion  of 754  378 

desertion,  may  be  dropped  tor,  not  entitled  to  demand 

trial 754  378 

desiiing  retirement,  to  state  cause  of  disability  under 

oath 506  230 

disability  reported  by  retiring  board  as  not  incident  to 

service 510  231 

dismissal,  attaches  no  legal  disability  except  where 

specifically  disqualified 813  432 

dismissal,  by  executive  order  .  .  \  05c 

•    [  OOO  1DU 

dismissal,  constructive  notice  of 813  432 

dismissal  for  cowardice  or  fraud,  sentence 807  428 

dismissal  of,  in  time  of  peace,  only  by  sentence  of  (806  427 

court-martial.  .  .  . \  813  431 

dismissal  of,  takes  effect  when 813  431 

dismissed,  in  time  of  war.  may  demand  trial  by  court-  /  39  21 

martial ' \  66  34 

dismissed,  may  be  reappointed 813  432 

doing  violence  to  persons  bringing  provisions,  etc., 

penalty 763  383 

dropped  for  desertion 66  34 

dutyasoounsel {  JJJJ  |» 

found  physically  disqualified  on  examination  for  pro- 
motion, entitled  to  grade 524  236 

eligible  to  sit  on  courts-martial 133  69 

entitled  to  release  from  arrest,  under  70th  Article  of 

War,  procedure  if  not  released 778  417 

evidence  of  record  of  court  of  inquiry  on  trial  of,  in- 
volving penalty  of  dismissal 828  437 

examination  for  promotion |  ^ |~,  ^oo 

forfeiture  of  pay  for  absence  without  leave 739  360 

forms  of  punishment  appropriate  for 326  156 

found  drunk  on  duty,  penalty  for 745  364 

general  officer,  sentences  respecting,  to  be  confirmed  /  439  201 

by  President \  815  433 

in  arrest,  considered  on  parole 98  54 

entitled  to  copy  of  charges 778  416 

entitled  to  release   under   Article   71,   cannot 

release  himself 778  417 

not  to  wear  sword,  etc 98  54 

on  honor  to  keep  limits 101  54 

penalty  for  violation  of 772  414 

status  of 96  53 


616  INDEX 

PAR.  PAGE 

Officers  (continued): 

in  arrest  under  charge  of  guard,  not  relieved  from  re- 
sponsibility of  status 100  54 

incapacity  of,  how  brought  before  Secretary  of  War.  .   493  225 

in  charge  of  prisoners,  duty  of 775  415 

not  to  release  or  suffer  them  to  escape 776  415 

in  charge  of  property  of  deceased  officer  not  an  ad- 
ministrator    832  445 

liability  for  personal  contracts;  not  liable  on  govern- 
ment contracts 699  320 

liable  on  contracts  for  the  government,  when  not  war- 
ranted by  law 699  320 

limit  of  arrest  and  confinement  before  trial 777  415 

lying  out  of  quarters,  garrison,  or  camp 738  358 

may  be  ordered  before  retiring  board,  when 492  224 

f    47  24 

meaning  of  word  in  Articles  of  War •{  133  69 

1 706  324 

meaning  of  word  in  Article  24 731  352 

medical  (see  Medical  Officers) 93  52 

members  of  courts-martial  (see  Courts-martial), 
members  of  retiring  board  subject  to  challenge  (see 

Retiring  Boards) 503  229 

militia  (see  Militia  Officers): 

eligibility  to  sit  on  courts-martial 134  70 

rank  and  grade  of 831  442 

misbehavior  before  the   enemy,  or  abandoning  fort, 

post,  etc i 749  372 

misbehavior  in  presence  of  court-martial 68  35 

not  liable  to  criminal  prosecution  under  laws  of  State 
for  seizing  United  States  property  illegally  pos- 
sessed   724  341 

not  reporting  deserter  discovered,  penalty 757  380 

not  subject  to  garnishee  for  public  funds 699  321 

not  to  allow  soldier  to  hire  another  to  do  his  duty.  .  .  .   744  363 

not  to  appropriate  captured  property 716  334 

not  to  be  tried  by  juniors  in  rank  if  it  can  be  avoided .  .  <  ^j;  ^  JQ 

not  to  do  violence  to  persons  bringing  provisions ....  763  383 
not  to  place  soldier,  incompetent  to  perform  duties  as 

sentinel,  on  post 746  368 

not  to  release  prisoners  in  his  charge 776  415 

not  to  use  contemptuous  or  disrespectful  words  against 

the  President  or  other  civil  authority 726  342 

occasioning  false  alarms,  penalty 748  371 

of  any  troops  in  service  of  United  States,  subject  to 

Articles  of  War 771  414 

offering  violence  to,  or  disobeying  order  of  superior.  .  728  344 
of  militia,  rank  after  officers  of  like  grade  in  regular  or 

volunteer  forces 831  440 

of  militia,  rank  and  grade  of 831  442 

subject  to  order  of  President 831  442 

of  regular  forces  ineligible  to  sit  on  courts-martial  for 

trial  of  "other  forces  " > 134  70 


INDEX  617 


PAR.  PAGE 

Officers  (continued) : 

order  placing   in   arrest    includes  what,  penalty  for 

breach  of  arrest 97  54 

period  of  confinement  before  trial  limited,  Art.  70.  .  .     106  56 

procedure  in  case  of  death  of 832  444 

prosecuted  for  act  done  under  official  authority,  how 

defended 700  321 

punishable  for  permitting  drunken  man  to  enter  upon 

duty 745  365 

punishments  that  may  be  awarded  (see  Punishments).  326  156 

quitting  guard,  platoon,  or  division 747  371 

recommended  to  attend  divine  service 759  381 

remedy  for  continuance  in  arrest  beyond  limit  of  Art. 

70 777  415 

reparation  of  wrongs  of 736  356 

resignation  does  not  separate  from  service  till  accept- 
ance    756  379 

responsibility  for  loss  of  property,  wilfully  or  through 

neglect 722  336 

retired,  eligibility  to  detail   as  members  of   courts- 
martial 135  70 

retired,  subject  to  arrest  by  military  authorities 95  53 

retirement  of  (see  Retirement;  Retiring  Boards).  ..  .  <  II?  ^93 

retirement  of,  on  examination  for  promotion 515  233 

seizure  of  property  of  United  States  illegally  in  hands 

of  persons  not  soldiers 724  341 

sentence  to  dismissal,  by  court  convened  by  command- 
er of  division  or  separate  brigade,  to  be  confirmed 

by  whom 814  432 

sentenced  to  loss  of  relative  rank,  not  restored  thereto 

on  promotion 341  162 

status  of,  of  regular  army  mustered  as  volunteer 830  439 

stoppages  against,  to  be  explained,  etc 356  168 

(337  161 

OOO  1  £*  1 

T3Q  1fi9 

808  428 

suspended,  entitled  to  quarters 808  429 

to  be  arrested  for  serious  offenses  only 93  52 

to  behave  orderly  in  quarters  and  on  march 762  383 

to  be  tried  by  general  courts-martial  only ]  140  72 

to  permit  command  to  be  used  as  posse  comitatus  only 

when 691  317 

to  repair  to  place  of  parade,  exercise,  etc 740  360 

to  report    discovery  of   deserter  enlisted  in  another 

regiment 757  380 

to  report  prisoner  committed  to  his  charge 775  415 

trial  of,  by  juniors  in  rank,  who  determines 140  72 

volunteer,  commissions  of  (see  Volunteers) 830  438 

eligibility  to  sit  on  courts-martial 134  70 

regular  officers  as 830  439 

wholly  retired,  status  of 510  231 


618  LS'DEX 


PAB.  PAGE 

Officers  (continued): 

who  think  themselves  injured,  etc.,  remedy  tor <     '   :?  ^^ 

^      <OO  oOj 

On  duty: 

meaning  of  term,  includes  what,  Art.  38 745  364 

commanding     officer,     commissioned     officer, 

post  quartermaster,  post  surgeon 745  365 

Opinion : 

by  court  of  inquiry,  not  to  be  given  unless  ordered. .  .    826  436 

evidence 589  265 

of  experts  (see  Evidence) 590  266 

Opinions : 

of  Attorney-General,  force  of,  and  when  binding 24  12 

of  Judge- Advocate-General,  when  binding  (see  Judge- 
Advocate-General) 25  12 

Order : 

maintenance  of,  in  quarters,  on  march,  etc.,  Art.  54  .  .   761  382 

of  examination  of  witnesses J    ~^  **| 

of  voting,  Art.  95 370  173 

Orders : 

authentication  of,  as  evidence 558  253 

binding  force 16  9 

character  of,  issued  through  third  person 728  347 

classification  of,  general  or  special,  written  or  verbal  .17  9 

convening  boards 525  237 

convening  courts  of  inquiry,  Art.  115 460  212 

convening  garrison  courts-martial 76  41 

general  courts-martial 33  ig 

regimental  courts-martial 86  47 

retiring  boards 487  223 

disobedience  of,  penalty  for /    728  344 

by  general  prisoner,  how  charged .  . .  '. 728  348 

form  for  special,  Appendix  E 534 

general,  by  whom  and  whence  issued /      j^  ^ 

issued  by  the  Secretary  of  War,  force  of,  and  binding 

on  whom 16  9 

lawful,  obedience  to,  Art.  21 728  344 

lawful,  obedience  to  as  a  defense [    ^c  QAS 

manner  of  issue,  etc 728  347 

must  not  conflict  with  statutes,  or  orders  of  a  superior.     17  10 

presumption  of  legality 728  347 

publication,  effect  of 728  348 

special,  by  whom  and  where  issued 17  10 

standing,  defined,  nature  of,  relate  to  what 18  10 

to  subordinates,  penalty  for  disobedience  of 16  9 

verbal,  force  of 17  10 


INDEX  619 


PAR.  PAGE 

Ordnance  Department: 

regimental  courts  for,  Art.  81 77  42 

Organization : 

of  militia,  etc.,  Art.  124 831  441 

of  volunteers,  Art.  123 830  439 

Parade : 

failure  to  repair  to  place  of ,  etc 740  360 

Pardon : 

as  affecting  competency  of  witnesses 617  280 

authority  for,  to  whom  given,  Art.  112 {  819  434 

constructive,  when,  how  proved 203  103 

general,  may  be  taken  judicial  notice  of,  special  must 

be  proved 202  103 

power  of,  as  to  time  when  it  may  be  executed 203  103 

power  ot ',  in  cases  tried  by  regimental  or  garrison  courts.  446  205 

power  of,  in  cases  tried  by  summary  court  (see  Ap-  /  446  205 

pendix  B) \  481 

power  of,  vested  in  oiilcer  authorized  to  convene  /  446  205 

courts-martial,  Art.  112 .' .  .  .  \  819  434 

power  of,  vested  in  President,  unlimited  except  in 

impeachment 446  205 

power  of,  vested  in  reviewing  authority,  limited 447  206 

soldiers  to  ask,  under  Art.  25 732  352 

when  valid,  how  proved  to  court 203  103 

Parole : 

check  on  countersign,  to  whom  given 751  374 

Pay  and  Allowances: 

forfeiture  of  (see  Forfeiture) 340  162 

of  militia  in  service  of  United  States 831  442 

Penalty  (see  Punishments) : 

branding, .  marking,  or  tattooing  prohibited 745  364 

death,  cannot  be  mitigated  or  reduced 331  159 

death,  vote  required  for 803  426 

disobedience  of  orders  of  superior  officer 728  344 

disturbance  of  divine  service 759  381 

f     97  54 

for  breach  of  arrest,  by  officer,  Art.  65 •{    103  55 

I    772  414 
for  certain  crimes,  punishable  by  courts-martial  in 

time  of  war 765  385 

for  desertion,  Arts.  47,  103 /    ^o  429 

for  destruction  of  property  of  citizens  (see  Art.  54) .  .   762  383 
for  doing  violence  to  persons  bringing  provisions.  .  .  763  383 
for  enticing  to  desert,  harboring,  or  concealing  a  de- 
serter   758  381 

found  drunk  on  duty 745  364 

injury  to  property  of  citizens 762  383 

receiving  stolen  property  of  United  States,  etc 767  407 


620  INDEX 


_,  PAR.  PAGE 

Penalty  (continued) : 

sentinel,  sleeping  on  or  leaving  post 746  367 

trade  with  enemy 8^7  450 

use  of  profane  oath  or  execration 760  382 

Penitentiary : 

f    313  149 

|    314  150 

confinement  in,  Art.  97,  sentence  to,  when  autho rized.  •{    315  150 

|    316  150 

I    804  426 

sentence  to,  may  be  mitigated  to  military  prison  .  .  \      1^  ^2 

(_    451  207 

Peonage : 

use  of  army  to  suppress 690  316 

Perjury: 

defined,  how  established 767  401 

evidence  necessary  to  sustain  charge 767  401 

statutory  crime,  triable  by  court-martial,  Appendix  E  (note)  £02 

subornation  of 767  491 

Persons  serving  with  armies  in  the  field: 

triable  by  courts-martial  when 770  413 

Persuading  to  desert: 

penalty,  Art.  51 758  381 

Philippine  Islands: 

habeas  corpus  in 230  1 14 

witnesses  before  courts-martial 223  111 

Pillaging  : 

prohibited,  Art.  42 749  372 

Plea: 

change  of,  permitted  when 207  104 

definition  of,  how  divided 177  93 

demurrer,  statute  of  limitation  not  to  be  taken  advan- 
tage of  by 187  97 

former  acquittal,  etc.,  must  be  by  military  court.  ...    195  100 

guilty  without  criminality,  effect  of. 205  104 

in  abatement,  based  on  what,  effect  of 180  94 

burden  of  proof  to  sustain 184  96 

dilatory    pleas 181  94 

form  of,  written  or  oral 184  95 

may    be  made       when    material    changes    in 

charges 183  95 

misnomer,  must  be  accompanied  with  correct 

name. 181  94 

in  bar  of  trial,  grounds  for,  effect  of 185  96 

former  acquittal  or  conviction,  must  be  made 

by  accused 197  101 

former  trial  for  same  offense,  available  in  in- 
ferior courts 809  429 

statute  of  limitation,  Art.  103 186  96 


INDEX  621 

PAR.  PAGE 

Plea  (continued) : 

of  guilty,  admits   jurisdiction   of   court  and   waives 
defects   in  IOIMI,  but  does  not  prevent  admission 

of  testimony 206  104 

of  pardon,  effect  of,  operative  when 201  102 

special,  when  made  and  recorded 392  181 

standing  mute  or  answering  foreign  to  the  purpose,  J    209  105 

etc.,  effect  of,  duty  of  court [    796  423 

statement  inconsistent  with,  procedure  in  case  of.  ...    208  105 

to  be  entered  in  full  in  record 391  181 

to  general  issue,  when  and  how  made 204  103 

withdrawal    of 207  104 

to  the  jurisdiction 177  93 

effect  it'  sustained 178  93 

questions  involved 179  63 

(    118  63 

under  incorrect  name,  title,  or  description J    ™  95 

Plundering: 

prohibited,  Art.  42 749  372 

Political  discussions: 

use  of  disrespectful  language  toward  authority,  Art.  19.  726  342 

Posse  Comitatus  (see  Employment  of  Troops   to  Enforce 
the  Laws) : 

officers  not  to  permit  command  used  as,  except  when.  691  317 

use  of  army  as 689  315 

Post: 

abandonment  of,  meaning  of  word  in  Art.  42 749  372 

compelling  commander  to  abandon,  Art.  43 750  373 

sentinel,  abandoning,  meaning  of  "post "  of  sentinel .  .  746  367 

Post  Commander: 

action  on  charges 124  65 

authority  to  convene  and  review  proceedings  of  sum- 
mary court 80  43 

authority  to  convene  garrison  courts-martial,  Art.  82 .   789  419 
authority  to  review  proceedings  of  garrison  courts- 
martial,  Art.  112 819  434 

Postponement  of  Trial  (see  Continuance): 

when  granted 176  91 

President : 

action  in  confirmation  of  proceedings  approved    by 

reviewing  authority 437  199 

action  on  courts-martial  proceedings,  how  authenti-  /    438  200 

cated . j    439  201 

action  on  sentence  of  death  or  dismissal  of  officer,  in 

case  where  suspended  by  reviewing  authority 445  203 

acts  as  reviewing  officer  on  proceedings  of  courts-mar- 
tial ordered  by  him 36  19 

appoints  courts-martial,  when j    ^^  ^ j!~ 

authorized  to  prescribe  limits  of  punishments 325  155 


622  INDEX 


PAR.     PAGE 

President  (continued)  : 

confirms  all  sentences  regarding  general  officers  .....  <    i?*?     ^! 

olo 


confirms  death  sentence,  except  certain  offenses  in  J  437  199 

time  of  war  .................................  [  812  430 

confirms  dismissal  of  officers  in  time  of  peace,  Art.  106  .  813  431 

confirms  sentence  of  dismission  or  suspension  of  cadets.  442  202 
determines  emergency  for  call  of  militia  into  service, 

to  whom  he  may  issue  orders  ...................  831  442 

disrespectful  words  toward,  punishable  .............  726  342 

may  convene  general  courts-martial,  duty  to  do  so  in 

certain  cases  ..................................  36  19 


may  declare  existence  of  martial  law,  when.  .        .  . 

I  672  306 

may  order  court  of  inquiry  .......................  462  214 

power,  as  executive  in  military  government  .........  661  300 

power,  as  to  suspension  of  privilege  of  the  writ  of  habeas 

corpus  .......................................  680  309 

power  to  discharge  enlisted  men,  Art.  4  ............  711  329 

power  to  pardon,  constitutional  ...................  446  205 

power  to  use  army,  in  execution  of  the  laws  .........  688  315 

power,  not   limited,  extends  to  all  territory   of  the 

United  States  .................................  694  318 

power,  to  use  troops  for  protection  of  States  ......  | 

(  oy«5  olo 

President  of  Board: 

board  of  investigation  authorized  to  administer  oaths 

to  witnesses,  Appendix  C  .....................  483 

President  of  Court-Martial  : 

duties  of,  vote;  right  of  ..........................  141  72 

Presumption  (see  Evidence): 

as  to  competency  and  credibility  of  witnesses  .......  612  277 

as  to  criminal  capacity  (see  Defenses)  ..............  278  133 

as  to  illegal  possession  of  arms,  clothing,  etc.,  issued 

to  soldiers,  by  persons  not  soldiers,  being  illegal.  .  .  724  341 

as  to  innocence  of  accused  ........................  294  140 

as  to  knowledge  of  published  orders  ................  728  348 

as  to  legality  of  orders  issued  by  superior  officer  ........  728  347 

classes  of  (see  Evidence)  ..........................  598  270 

conclusive,  what  are  .............................  599  271 

disputable,  defined,  what  are  ......................  602  272 

estoppel  ........................................  601  271 

of  fact,  defined,  on  what  based  ....................  603  273 

of  law,  defined,  what  are  .....  ..................  /  ^  27? 

that  military   commander    makes   proper  use  of  his 

authority  .....................................  666  303 

Previous  Acquittal  :  Art.  102  (see  Pleas)  ...............  j  ™*  Jj® 

Previous  Convictions: 

apply  to  only  enlisted  men  (see  Appendix  D)  ......  j  '  ^ 


INDEX  623 


PAB.  PAGE 

Previous  Convictions  (continued}: 

authority  for  consideration  of  ........  .  .  I 

[     oUO  14o 

considered  in  closed  court  ........................   309  147 

copies  to  be  attached  to  record  ....................  406  186 

definition  of  ....................................  303  144 

evidence  of,  Appendix  D  (see  Courts-martial)  ........  490 

evidence  of,  by^  summary  court,  how  furnished,  etc.  .  .     308  146 

evidence  of,  limited,  except  in  case  of  desertion  ......  306  145 

evidence  of,  to  accompany  charge  (see  Appendix  D)  <  .  ~ 


^proved  .............  .  ......................  {  Io6  H6 

in  connection  with  general  court-martial  offenses, 

Appendix  D  ..................................  491 

in  connection  with  inferior  court  offenses,  Appendix 

D  .................  ..........................  491 

introduction  of,  statute  of  limitation  not  applicable  to  .  .  309  147 

judicial  notice  of,  by  summary  court  ,  taken  when  ......  305  145 

limited  to  convictions  by  military  courts  ...........  309  146 

meaning  of  term.  .  .  .  .............................  303  145 

not  limited  to  offenses  similar  to  one  on  trial  ...........  309  146 

of  previous  desertions,  when  introduced  ............  307  146 

plea  of,  Art.  102  .................................  194  99 

purpose  of  submission  ............................  309  146 

submitted  in  "  discretionary  "  sentences  only  ........  310  148 

to  accompany  charges  ............................  305  145 

when  admissible  (see  Appendix  D)  ...............  j  ^^  J^jj 

Prisoners  : 

attempted  escape  of  .............................  746  368 

care  of,  by  officer  in  charge  .......................  776  415 

charges  against  (see  Appendix  B)  ................  j  366  *gj 

discharged  soldier,  when  subject  to  rules  and  articles  /  336  170 

of  war,  etc.  (see  Appendix  B)  ..................  \  481 

duty  of  officer  in  charge  of  ........................  775  415 

escape  of,  constitutes  desertion  when  ..............  .  754  376 

killed  while  escaping,  on  military  reservation  ........  746  370 

labor  required  of  ..........................  »  .....  345  163 

officer  commanding  guard  to  receive,  when,  Art.  67  .  .  <  12?  4?? 

officer  commanding  guard  not  to  release,  Art.  69  .....  776  415 

officer  commanding  guard  to  report,  Art.  68  .......  |  ^25  ,?  )? 

receipt  of,  by  officer  commanding  guard  ............  774  414 

responsibility  and  duty  of  sentinels  in  charge  of  .....  746  368 

suffering  to  escape  ...............................  776  415 

Private  Documents: 

how  produced  in  evidence  ........................  566  256 

how  proved  (see  Documents)  ......................  562  254 


624  INDEX 

P>K      PAGE 

Privileged  Communications: 

ot  witnesses  (see  Confidential  Communications)  ......   628     285 

Privileged  Questions: 

incriminating  or  degrading    (see   Criminating   Ques- 

tions) ........................................   550     248 

f    ft*^n     ^ft£i 
State  secrets,  deliberation  of  boards,  courts,  etc.  .  .  .  <    g^i     907 

Proceedings  (see  Courts-martial;  Record).         . 
Process  : 


service  of,  at  military  post  located  in  a  Territory  .  .  .  .  «~JJ 

service  of,  on  reservation,  jurisdiction  ceded  by  State.  .114  60 
service  of,  on  military  reservation,  jurisdiction  not 

ceded  by  State  ................................   113       59 

Proclamation  : 

by  President  to  insurgents  to  disperse,  not  a  declara- 

tion of  martial  law  .............................  678  308 

by  President  to  insurgents  to  disperse,  to  contain  limit 

of  time  .......................................  694  319 

Profanity  : 

profane  oaths  prohibited  ..........................   760     382 

Professors  of  Military  Academy: 

eligibility  as  members  of  courts-martial  .............     48       25 

subject  to  rules  and  articles  of  war  .................   706     324 

Prohibition,  Writ  of: 

issued  by  some  State  courts  to  militia  courts-martial.  .  458  21  1 
United  States  courts,  right  to  issue  to  courts-martial 

not  decided  ...................................   458     210 

when  court-martial  has  jurisdiction,  not  issuable,  ob- 

ject of  writ  ...................................    458     210 

Prosecution  : 

conducted  by  judge-advocate  (see  Judge-advocate)    (iff  73 

Prosecutor  :  (see  Accuser  or  Prosecutor)  ..................  779  417 

Protection  : 

to  persons  and  property.  Art.  54  ...............  ....   531  239 

Provoking  Speeches: 

forbidden,  Art.  25  ...............................   732     352 

Provost  Courts  (see  Military  Government)  ...............  664     301 

Public  Documents  (see  Documents)  .....................  557     251 

Public  Funds: 

responsibility  for,  Art.  60  .........................   767     398 

statutes  relating  to  care  and  disbursement  of  ........   767     408 

Public  Officers: 

evidence  of  appointment  .........................   571     258 

presumption  as  to  proper  use  of  authority  ..........   666     303 

Public  Property: 

accountability  for,  arms,  etc  ......................   717     334 

accountability  for,  money  or  other  property,  Art.  60.  .   767     398 


INDEX  625 

PAR.  PAGE 

Public  Property  (continued)  : 

arms  and  property  ot  troops  to  be  accounted  for,  loss 

of  ...........................................  717  334 

captured  or  abandoned  property  ...................  716  334 

retaining  or  trading,  in,  forbidden  ...........  838  450 

captured,  to  be  disposed  oi  by  Congress  ............  716  334 

commanding  officer  to  inspect  and  to  be  responsible 

tor,  when  ordered  destroyed  by  surveying  officer.  .  .  £38  242 

damaged,   affidavits  to  be  submitted  to  surveying  J  537  241 

officer     ...................................  \  540  243 

damaged,    evidence    to    be   submitted    to    surveying 

officer.  .  ......................................  541  243 

destroyed,   on   recommendation  ot  surveying  officer. 

when  ........................................  '  537  241 

disposition  ot,  found  under  search  warrant  ..........  839  454 

illegal  conversion  of  ..............................  767  403 

inventory  of,  in  hands  of  deceased  officer  ...........  832  444 

misappropriation    of,    purchasing   or    receiving   in  f  767  399 

pledge  ......................................  \  767  407 

penalty  tor  loss  of,  through  neglect,  etc.,  by  an  officer.  .  722  336 
penalty   for    receiving   stolen,   within   jurisdiction  of 

United  States  .................................  767  407 

power  to  condemn,  in  whom  vested  ................  542  244 

report  of  survey  of,  in  case  of  desertion  .............  546  245 

report  of  surveying  officer,  by  whom  approved  ......  544  244 

report  of  surveying  officer,  disposition  of  ...........  545  245 

retu™°f  ....................                           •-{  767  398 

seizure,  under  search  warrant  .....................  839  452 

surveying  officer,  by  whom  designated  .............  539  242 

surveying  officer,  no  power  to  condemn.  .  ..........  542  243 

procedure  of  ..............................  540  243 

surveys  on,  purpose  of  ...........................  537  241 

what  constitutes  "neglect,"  etc.,  by  officers,  in  loss  of 

property.  .  .  ..................................  722  337 

Punishment  : 

ball  and  chain,  when  awarded  .....................  347  164 

bread  -and-water  diet  (see  Appendix  D) 


classification  of,  mandatory,  discretionary  ..........   325     155 

death,  mandatory  for  forcing  safeguard  ............   330     157 

sentence,  not  to  designate  time  and  place  .....   329     157 

when  awarded,  how  executed.  .  .  .......  .....   328     157 

deprivation  of  certificate  of  eligibility  for  appointment 

as  2d  lieutenant  ...............................   364     170 

dishonorable  discharge,  authorized  in  certain  cases, 

Appendix  D  ...................................  492 

dishonorable  discharge,  awarded  to  enlisted  men  only, 

by  general  court-martial  ........................   359     168 

dishonorable   discharge,  closes  all    accounts  and   re- 
^sponsibility,  except  under  Article  60  .............   360     169 

dishonorable  discharge,  effect  of  ,  separation  from  serv- 

ice ..  ..............  359     168 


626  INDEX 


PAR.  PAGE 

Punishment  (continued) : 

dishonorable  discharge,  tor  two  or  more  offenses,  none 

so  punishable  in  itself 361  169 

dishonorable  discharge,  relieves  irom  charge  ot  pre- 
vious desertion,  etc 360  169 

dishonorable  discharge  takes  effect  when 359  169 

discretionary  with  court,  within  limits  established  by 

executive  order 325  155 

executive  order  establishing  limits  o.,  Appendix  D.  .  .  484 

fine  (see  Fines) 350  165 

for  embezzlement,  misappropriation  *ot  public  funds, 

ialse  returns 837  450 

forfeiture  (see  Forfeiture) 351  165 

forms  of,  appropriate  for  officers 326  156 

appropriate  for  enlisted  men 327  156 

(    367  171 

prohibited  (see  Art.  98) •{    368  171 

I    369  171 
for  receiving,    concealing,   or   retaining   property   of 

United  States 767  406 

for  unauthorized  trade  with  State  in  rebellion 837  450 

hard  labor 345  163 

imprisonment  after  expiration  of  term  of  service  (see 

Imprisonment) 348  164 

imprisonment  of  officers,  only  on  conviction  of  serious 

crimes 342  163 

in  penitentiary,  subject  to  rules  thereof 345  163 

law  under  which  President  prescribes  limits  of 325  155 

limitations  of  executive  order  applicable  to  enlisted 

men  only 304  145 

f    302  144 

limits  of,  by  executive  order  (see  Appendix  D)  .  .  . .  <  4^ 

mandatory,  cannot  be  lessened  or  increased 325  155 

maximum  and  minimum  established  by  civil  statute, 

how  affecting  courts-martial 765  396 

maximum    limit    under    executive  order,    Appendix 

D 492 

may  be  pardoned  or  mitigated  by  officer  ordering 

court 819  434 

object  of . 325  155 

officer,  loss  of  relative  rank  or  files,  effect  of,  on  promo- 
tion (see  Loss  of  Files) 341  162 

officer,  suspension  from  command 339  162 

of  spies 836  448 

power  of  garrison  and  regimental  courts-martial 81  45 

power  of  general  courts-martial  (see  Jurisdiction).  ...     52  28 

power  of  summary  court 80  43 

previous  convictions  in  connection  with  (see  Previous 

Convictions) 301  144 

reduction  in  grades,  first-class  to  second-class  privates, 

when ; 363  170 

reduction  to  ranks,  for  non-commissioned  officers  .  .  .  362  170 

reprimand,  to  whom  awarded  and  by  whom  given.  .  .   358  168 

soldiers  discharged  and  in  confinement,  subject  to. ...  366  170 


INDEX  627 

PAR.  PAGE 

Pnnishment  (continued) : 

solitary  confinement,  limit  of  (see  Appendix  D) j  J* 

stoppages,  not  punishments  but  reimbuisements  (see 

Stoppages) 355  167 

substitution  ot 365  170 

susceptible  of  mitigation, 450  207 

suspension  trom  command,  duty,  rank,  or  pay b37  161 

suspension    trom    command    included    in    suspension 

from  rank 339  162 

suspension  trom  lank,  officei  loses  right  to  promotion 

during  period  ot,  but  not  to  quarters 338  162 

suspension  of  pay  or  allowances 340  162 

witnesses  letusing  to  appear  and  testify  before  court- 
martial 72  38 

Quarters : 

absence  trom,  without  leave,  Art.  31.  .  .  .  , 738  358 

behavior  in,  Art.  55 762  383 

false  alarms  in,  Art.  41 748  371 

lying  out  of,  Art.  31 738  358 

officer  suspended  from  rank,  entitled  to 808  429 

Quorum : 

{£\  1  A  OQQ 

518  235 

court  of  inquiry 466  215 

general  court-martial 782  418 

on  revision 416  190 

to  constitute,  how  secured . . . . 783  418 

must  be  present  after  all  challenges  are  acted  on  .....  389  181 

retiring  board 503  229 

Rank: 

members  of  courts-martial 135  70 

relative,  ot  regulars,  volunteers,  and  militia 831  442 

suspension  from  (see  Punishment) 338  161 

Rape: 

assault    and   battery   with   intent   to    commit,    how 

proved 765  395 

definition  of 765  394 

penalty  for,  Art.  58 765  385 

Reading  over  Testimony  (see  Record) 397  183 

Recall  of  Witnesses: 

in  same  case  (see  Witnesses) 242  120 

Receipts  (see  False  Receipts) 767  398 

Receiving  Stolen  Goods |  767  407 

Recommendation  to  Clemency: 

when  and  how  made 378  175 

Record : 

of  boards,  by  whom  and  how  made,  how  authenticated  530  238 

board  of  examination  for  promotion 524  236 


INDEX 


PAR.  PAGE 

Record  of  Courts=martial  : 

accused  entitled  to  copy |  ^i  435 

action  on,  by  reviewing  authority,  not  to  be  delegated.     39  20 

adjournment,  stated  and  authenticated  .  .  .  . 411  187 

appendices,  how  marked  and  referred  to 385  179 

approval  by  reviewing  authority 428  195 

arraignment  must  be  shown 391  181 

authenticated  by  judge-advocate  and  president  of]  152  79 

court \  381  178 

authority  tor  absent  members  appended  to 385  179 

cannot  be  corrected  after  court  is  dissolved 419  192 

challenge,  must  show  opportunity  for,  by  accused.  .  .  387  180 
challenge   sustained,    must    show  member    of    court 

withdraws,  and  quorum  remaining 389  181 

changes  in  membership,  shown  in 386  180 

charges  and  specifications  entered  in  full 391  181 

{  292  139 

closed  sessions  shown \  405  185 

(  406  186 

communications  concerning,  to  Judge-Advocate-Gen- 
eral   424  193 

complete  history  of  organization  and  proceedings.  ...  380  177 

convening  order  and  modifications  entered  in   ....;.  384  179 

court  responsible  for 409  187 

daily,  signed  by  judge-advocate. 381  178 

destruction  or  loss  of 414  189 

f  36  19 

disposition  of,  general -|  422  193 

L  820  434 

garrison  or  regimental  court j  426  194 

{  413  1 8Q 

summary  court |  427  ^ 

documents  submitted,  to  be  attached  to 403  184 

erasures  or  interlineations  in 417  191 

examination  and  cross-examination  of  witnesses,  how 

recorded 397  182 

finding  and  sentence,  written  by  judge-advocate  ....  382  178 

finding,  how  made  and  recorded 405  185 

{  75  41 

form  for  garrison  court-martial  (see  Appendix  E).  .  \  420  192 

1  516 

form  for  general  court-martial,  Appendix  E 504 

form    for  general   court-martial  on  revision,   Appen- 
dix E 512 

form  for  regimental  court-martial  (see  Appendix  E)  |  ^g 

80  44 

form  for  summary  court  (see  Appendix  E) \  421  192 

[  514 

how  and  to  whom  forwarded,  general  courts 412  188 

inferior  courts 413  189 

how  corrected  on  revision 415  190 


INDEX  629 


PAR.  PAGE 

Record  of  Courts-martial  (continued)  : 

how  headed,  must  show  order  for  court,  etc  .........  384  179 

inferior  courts,  custodians  of,  judge-advocates  of  de- 

partments ....................................  425  194 

inferior  courts,  destroyed  when  ....................  427  194 

judge-advocate  to  make  full  and  accurate  ............  151  78 

to  forward  proceedings  to  reviewing  authority.  820  434 
lost,  effect  of  loss  before,  or  after,  action  of  reviewing 

authority  .....................................  414  189 

matter  irrelevant  or  unimportant  ..................  403  185 

must  show  all  questions  and  answers  of  challenged 

member  on  voir  dire  ...........................  388  180 

must  show  arraignment  and  pleas  in  full  ............  391  181 

must  show  date  and  place  of  meeting,  and  members 

present  and  absent  ............................  385  179 


must  show  facts  giving  jurisdiction.  .  . 

must  show  opportunity  of  accused  to  challenge  .....  795  423 
must  show  previous  convictions,  if  submitted,  with 

copies  attached  ................................  406  186 

must  show  that  members  and  judge-advocate  were 

duly  sworn  in  presence  of  accused  ...............  390  181 

number  of  times  directed  revised,  not  limited  .......   419  192 

papers  accompanying  ............................   412  188 

papers  received  with  charges,  not  attached,  to  be  re- 

turned with  ...................................  410  187 

papers  submitted  to  court,  and  not  received,  to  be  re- 

ferred to  .............................  ........  403  185 

pleas  to  general  issue,  how  recorded  ................  393  181 

questions  of  judge-advocate  and  answers,  how  re- 

corded .......................................  397  182 

questions  of  member  objected  to,  how  recorded  .....  401  184 

recess,  how  noted  ................................  311  188 

(  ^378  17^ 

recommendation  to  clemency,  appended  to  .......  I  41Q  ^ 

reconvening  after  daily  adjournments  ..............  311  188 

reply  of  judge-advocate,  to  be  contained  in  or  appended 

to  ...........................................    404  185 

revision,  appended  to  original  record  ...............  418  192 

revision  proceedings,  how  made  ...................   415  189 

must  show,  what  ..........................  416  190 

revision,  original  record  not  to  be  altered  ...........  417  191 

space  left  for  reviewing  officer  .....................   409  187 

states  when  prosecution  rests  .....................   397  183 

to  contain  entire  proceedings  in  case  of  witness  testify- 

ing on  voir  dire  ................................   237  1  18 

to  contain  questions  to  witnesses  and  answers  in  full.  .  240  119 
to  contain  verbal  statement  if  made,  or  written  state- 

ment appended  ................................  402  184 

to  show  accused  sworn  "at  his  own  request  "  .......   399  183 

,.  f  406  186 

to  show  adjournment  ..........................  j  4H  jgg 

to  <5howall  objections,  answers,  and  interlocutory  mat- 

ters, and  actions  thereon  .......................  400  183 


630  INDEX 

PAR.    PAOE 

Record  of  Courts-martial  (continued) : 

to  show  all  testimony  in  words  of  witness 394  182 

to  show  changes  in  membership  ot  court 386  180 

to  show  court  and  judge-advocate  sworn  before  ar- 
raignment of  accused 393  182 

to  show  court  cloted  to  consider  previous  convictions .  .   406  186 

to  show  introduction  of  accused,  counsel,  etc 387  180 

to  show  name,  xank.  and  station  ot  witnesses,  and 

identification  of  accused 396  182 

to  show  quorum  remaining  after  all  challenges  are 

acted  upon 389  181 

to  show  reading  of  order  to  accused  and  opportunity 

to  challenge 387  180 

to  show  witnesses  were  duly  sworn 395  182 

to  state  ground  of  challenge  and  reply  thereto 388  180 

written  in  ink  or  on  typewriter 382  178 

Record  of  Court  of  Inquiry  (see  Courts  of  Inquiry): 

to  whom  delivered 827  437 

Record  of  Retiring  Board: 

form  of  (see  Retiring  Boards),  Appendix  E 519 

Record  of  Surveying  Officer: 

approval,  confirmation,  and  disposition  of 544  244 

Recorder : 

board  of  examination  of  officer  for  promotion 516  233 

board  of  examination,  swears  witnesses  before 521  236 

courts  of  inquiry,  duties  of |    g2y  437 

oath  of 824  436 

military  board  for  investigation,  authorized  to  admin- 
ister oath  to  witnesses,  Appendix  C 483 

military  commissions 684  313 

retiring  board,  duties  of 499  227 

oath  of 504  229 

not  a  member 489  224 

Redirect  Examination: 

of  witnesses  (see  Witnesses) 241  120 

Redress  of  Wrongs  (see  Arts.  29,  30) {   ^  357 

Reduction : 

non-commissioned  officers,  Appendix  D 

first-class  privates  to  second  class,  Appendix  D 492 

Regimental  Court-martial  (see  Courts-martial) : 

authority  for 26 

composition  of,  Art  82 77  42 

convened  by  chief  of  engineers 77  42 

convened  by  chief  of  ordnance 77  42 

convened  by  chief  signal  officer 77  42 

.                 ,                                                    f    425  194 

disposition  of  record  ot |    426  194 

form  of  record  of,  Appendix  E 518 

organization  and  jurisdiction. |      gj  45 


INDEX  631 

PAH.    tAGE 

Regimental  Court-martial  (continued): 

record,  to  whom  forwarded , 413     189 

when  to  be  convened 78      42 

Regimental  Court  for  Doing  Justice  (Art.  43). 

appeal  from 89       48 

authority  tor   composition,  oigamzat ion  and  powers  |      ^ 

by  whom  convened 77  42 

membership  limited  to  members  of  regimental  organ- 
ization   88  48 

proceedings,  etc.,  submitted  to  reviewing  authority .  .  89  48 

remedies   applied  by  whom | 

statute  ot  limitations  not  applicable  to 191  99 

{12  7 

13  8 
Regulations,  Departmental  (see  Departmental  Regulations) . 

authority  for 14  8 

Regulations,     U.    S.     Military     Academy    (see    Military 
Academy) 

by  whom  issued 15        9 

Relation  of  Military  Persons  to  Civil  Authority: 

amenable  to  local  courts  ot  a  Territory 695     319 

living  on  government  reservation  exempt  from  taxes, 
but  excluded  from  privileges;  not  liable  to  jury  ser- 
vice or  local  process 704  322 

method  ot  arrest  for  offenses  against  civil  law 698     320 

military  subordinate   to   civil  authority   in  time  ot 

peace 695     319 

offenses  committed  within  limits  of  territory  ceded  by 

State. 696     319 

officer  arrested   by   State   authority,  for  official  act, 

action  to  be  taken 701     321 

officer  liable  for  personal  contracts,  but  not  for  those 

of  government 699     320 

officer  not  subject  to  garnishee  for  public  funds  held .  .   699     321 
officer  prosecuted  for  an  act  done  under  official  au- 
thority, how  defended 700     321 

personal  property,  when  not  under  United  States  juris- 
diction ,  taxable .  except  used  in  official  capacity 703  322 

soldier  exempt  from  arrest  on  mesne  process   or  lor 

debt,  when 697     319 

subject  to  civil  suits  on  contracts,  debts,  etc 695     319 

taxation  of  officers,  what  may  be  taxed 702     321 

taxation,  post  exchange  not  liable  to 703    322 

Release : 

trom  arrest  or  confinement  of  enlisted  men  . .        . .  <    --o 

[    773     414 

f  93  52 

of  officers \  777  415 

I  778  416 

of  prisoners,  Art.  69 776  415 


632  INDEX 


PAR.     PAGE 

Relevancy  of  Evidence  (see  Evidence)  ..................  607     276 

Relieving  the  Enemy  (see  Enemy): 

prohibited,  Art.  45  ...............................   752     374 

Remarks  of  Court=martial  in  connection  with  Finding.  .  300  143 

reviewing  authority  ..............................  434  198 

Remission  (see  Pardon): 

action  of,  after  punishment  awarded  ...............  452  207 

definition,  effect  of  ...............................  449  206 

included  in  power  to  pardon  ......................  448  206 

may  be  made  by  successor  to  command  .............  452  208 

of  unexecuted  sentences  ..........................  452  207 

power  of,  may  be  employed  so  long   as  material  re- 

mains for  its  exercise  ...........................  452  207 

Reparation  : 

injuries  to  person  or  property,  Art.  54  ..............   531     239 

Reply  of  Judge=advocate  .............................   291     137 

Report  : 

of  officer  in  charge  of  prisoner.  Art.  68  .........  :  .  .  .    105       56 

Reporter  : 

court-martial,  application  and  authority  for  ,  duties  of  .  163  83 

form  for  accounts  of,  Appendix  E  ...........  533 

oath  ot  ...................................  162  83 

pay  of,  etc  ..........................  (note)  163  84 

court  ot  inquiry,  authority  tor,  pay  of  ..............  465  215 

retiring  board,  how  secured,  duties,  payment  ot,  etc.  ...  499  227 

Reprimand  : 

for  light  offenses,  by  whom  administered  ...........   358     168 

Reproachful  Speeches: 

prohibited,  Art.  25  ...............................   732     352 

Reputation  : 

general,  of  witness  (see  Impeachment)  .............   641     291 

Requisitions  (see  Laws  of  Wai): 

by  whom  made  in  time  of  war  ....................   658     299 

Res  Gestse  (see  Evidence): 

admitted  as  evidence,  when  .......................   580     261 

definition  of  ....................................   579     260 

Responsibility  for  Property  (see  Public  Property). 

Retainers  to  Camp: 

amenability  to  military  law,  who  included  in  term, 

Art.  63  .......................................   770     413 

Retreat: 

repair  to  quarters  at,  Art.  35  ......................   742     362 

Retired  Officers: 

r      AQ       05 
assignment  to  active  duty,  when  ' 


salary  not  taxable  ...............................   703     322 

status  as  to  holding  public  office,  etc  ...............   481     220 

subject  to  arrest  by  military  authorities  ............     95       53 


INDEX  633 

PAR.  PAGE 

Retirement  (see  Retiring  Boards): 

authority  for 479  220 

board  of,  examination  tor  promotion,  conclusions  con- 
fidential, right  of  officer  to  be  present 522  236 

by  law,  action  of  retiring  board  not  required,  when .  .  .   485  223 

by  law  at  sixty-four  years  of  age 482  222 

by  President,  after  forty-five  years  of  service,  or  at 

sixty-two  years  of  age 483  222 

by  retiring  board,  when 486  223 

officer  before  board  of  examination  for    promotion, 

effect  of  approval  of  action  of  board 524  236 

officer  before  board  of  examination  for  promotion,  evi- 
dence before 521  235 

officers  before  board  of  examination  for  promotion, 

may  challenge  members 518  234 

officer  before  board  of    examination   for   promotion, 

procedure  of  board,  finding,  etc 519  235 

officer  on  examination  for  promotion,  physical  fitness 

determined  by  full  board 523  236 

of  officers,  provision  of  law  for,  effect  of 479  220 

on  examination  for  promotion,  composition,  and  con- 
stitution of  examining  board 516  233 

on  examination  for  promotion,  regulations  for 515  233 

on  examination  for  promotion,   right   of   officer  to 

examine  witnesses,  when 520  235 

retired  officers,  unless  wholly  retired,  remain  part  of 

the  army  (see  Retired  Officers) 480  220 

service  as  cadet  counted  tor 484  223 

under  law,  on  application  atter  thirty  years;  and  after 

forty  years 482  222 

Retiring  Boards: 

authority  tor,  composition  and  constitution 487  22$ 

authority  to  receive  testimony  of  witnesses,  deposi- 
tions, etc 494  225 

cannot  compel  officer  to  testify  against  himself 506  230* 

closed  session 509  231 

composition  and  constitution 487  223 

documentary  evidence  before 507  230 

duties  of  recorder,  reporter  for 499  227 

finding  conclusive  as  to  fact  on  legal  approval;  ineffec- 
tive until  approved 512  232 

finding  of  facts  not  to  be  modified  or  changed  by 

reviewing  authority 513  232 

finding,  when  and  how  made,  recommendation 509  231 

form  for  proceedings  of,  Appendix  E 519* 

incapacity  not  result  of  incident  of  service 510  231 

inquire  into  physical  or  mental  incapacity  only 498  227 

may  modify  findings  or  decision 510  232 

medical  officer's  report  in  writing 505  230 

medical  officers  to  testify 507  230 

members  and  recorder  designated  by  the  Secretary  ot 

War 489  224 

members  and  recorder  duly  sworn,  oath  of 504  229 

members  subject  to  challenge.  .  .  .- 503  229 


634  INDEX 


PAR.  PAGE 

Retiring  Boards  (continued}  : 

membership  necessary  to  constitute  legal  board  .....   488  223 

not  affected  by  statute  of  limitations  ...............   503  230 

objection  to  admission  of  improper  evidence  ........    10  /  230 

officer  before,  entitled  to  counsel,  to  examine  witnesses, 

etc  ..........................................    502  228 

officer  desiring  retirement  to  state  cause  ot  disabili.y 

under  oath  ...................................    506  230 

procedure  of  ....................................   500  228 

(     4Q1  994 

purpose  and  powers 


quorum  ........................................   503  229 

rank  ot  members  determined  by  convening  authority  .  490  224 

record,  how  made,  authenticated,  and  transmitted  /  511  232 

(see  Appendix  E)  ...........................  [  519 

recorder  not  a  member,  duties  of  ..................   489  224 

revision  of  proceedings  ...........................   514  233 

right  of  officer  to  be  heard  ........................    501  228 

to  ascertain  it  incapacity  is  an  incident  of  service  ....   496  226 

to  ascertain  nature  and  extent  of  disability  .........   495  225 

to  ascertain  whether  incapacity  is  due  to  contributory 

negligence  ....................................   497  227 

when  to  be  convened  .............................   492  224 

witnesses  before,  oath  of  ..........................  504  230 

Returns  (see  Public  Property;  False  Returns). 

classes  of,  definition  ..............................   714  332 

of  property  to  be  sustained  by  vouchers  (see  Art.  60).  .     715  332 

of  service  of  subpoenas  (see  Appendix  E)  .........  j 

of  state  of  command,  by  whom  made  ............  \    -,+  r  ooo 

to  writ  of  habeas  corpus  for  discharge  of  minor  (see  J    710  327 

Appendix  E)  ...............................  1  537 

to  writ  of  habeas  corpus  for  enlisted  man  or  general 

prisoner,  issued  by  State  Court  ..................   229  114 

to  writ  of  habeas  corpus  for  enlisted  man  or  general 

prisoner,  issued  by  United  States  Court  ...........   228  113 

to  writ  of  habeas  corpus  issued  by  State  Court,  form  of, 

Appendix  E  ..................................  536 

to  writ  of  habeas  corpus  issued  by  United  States  Court, 

form  of,  Appendix  E  ...........................  534 

to  writ  of  habeas  corpus,  instructions  as  to,  Appendix  E.  536 

Reviewing  Authority: 

absence  of,  from  department  or  division  ............   429  196 

action  necessary  on  proceedings  of  courts-martial.  .  .  .  428  195 

action  necessary  to  give  life  to  sentence  ............   433  '  197 

action  of,  may  be  with  or  without  comment  .........   434  198 

action  of  President  may  be  authenticated  by  signature 

of  Secretary  of  War  ............................   438  200 

action  on  cases,  in  time  of  war,  requiring  confirmation 

of  superior  authority  ...........................   437  199 

action  published  in  general  or  special  orders,  in  what 

cases.  .                                                                            .  435  199 


INDEX  635 

PAR.  PAGE 

Reviewing  Authority  (continued') : 

action  to  be  personally  endorsed  on  and  form  part  of 

record 434  198 

approval  of  record  by 381  178 

f    428  195 

approval  of  sentence J     ,~~ 

I    io"±  o.yo 

I    811  430  I 
cadets  tried  by  court-martial,  action  to  be  confirmed 

in  what  cases 442  202 

f   3^4  i  fin 

cannot  commute  sentence ]:£?  Ang 

cannot  delegate  power 431  197 

cannot  pardon  or  mitigate  sentence  of  death  or  dis- 
missal   445  203 

cannot  increase  punishment  awarded 432  197 

confirmation  of  action  by  President,  how  authenti- 
cated   438  200 

confirmation  of  action  by  superior  other  than  Presi- 
dent, required  when 440  201 

department  merged  or  post  abandoned 431  197 

designates  time  and  place  of  death  sentence 329  157 

disapproval  of,  nullifies  sentence 433  198 

executes  sentence  of  reprimand 358  168 

execution  of  sentence  by 436  199 

liable  to  civil  suit  for  damages  when  he  executes  illegal 

punishment  awarded 30  15 

may   approve   part   and  disapprove  other  parts  of 

record 432  197 

may  approve  so  much  as  is  legal,  of  sentence  in  excess 

of  law 322  153 

may  disapprove  record   for  irregularity  as  well  as 

illegality 444  203 

may  mitigate  sentence  to  penitentiary 443  202 

may  pardon  or  mitigate  a  sentence,  but  not  commute  it.  443  202 

may  reconvene  court  for  revision  of  record 432  197 

may  suspend  sentence,  when 445  203 

must  state  date  of  action  on  record 434  198 

not  controlled  in  his  action  by  superior 444  203 

not  limited  as  to  return  of  proceedings  for  revision.  ..  419  192 
not  required  to  give  reasons  tor  his  action,  except  on 

returning  for  revision 444  202 

officers  authorized  as,  in  time  of  war 430  196 

officers  designated  by  law  as 428  195 

order  promulgating  action  on  proceedings 434  198 

power  to  pardon  or  mitigate  punishment |    81^  ^^ 

rank  cf 428  196 

sentences  approved,  cases  requiring  confirmation  of 

President 437  199 

sentences,  approved  in  time  of  war  requiring  confir- 
mation by  superior  authority 440  201 

sentence  of  dismissal  to  be  confirmed  by  general  com- 
manding, when 441  201 


636  INDEX 


PAR.  t-AGR 

Reviewing  Authority  (continued} : 

the  President  as 36  19 

to  state  his  decision  and  orders  at  end  of  each  case..  .   428  195 

Revision   Proceedings: 

accused,  presence  of,  at 416  190 

case  not  to  be  reopened  by  calling  witnesses 418  192 

changes  and  corrections  wholly  within  discretion  of 

court 419  192 

not  a  "second  trial  " 809  429 

record,  separate,  to  be  appended  to  original  record.  .  .  418  192 

Revision  of  Record  (see  Record): 

may  be  ordered  by  reviewing  authority 415  189 

omission  corrected  must  be  one  of  fact 417  191 

original  record  not  altered 417  191 

quorum  for 416  190 

Reward : 

for  deserters 754  376 

how  paid,  when  not  stopped  against  soldier.  .  .  754  377 

Riot: 

reparation  for  damage  by,  of  soldier,  Art.  54 761  382 

Robbery  (see  Art.  58) : 

definition  of,  punishment  for,  intent  in,  Art.  58 765  386 

Rules  of  Evidence  (see  Evidence) : 

controlling  courts-martial 547  246 

Rules  Governing  Accounts  of  Civilian  Witnesses : 

Appendix  E 530 

Safeguard  (see  Art.  57) : 

definition  of,  penalty  for  forcing 764  384 

Search  Warrant  (see  Warrant) 724  341 

Second  Trials: 

forbidden,  Art.  102 809  429 

Sedition : 

defined,  Art.  22 729  350 

penalty  for  beginning,  exciting,  or  joining  in 729  348 

Sentences : 

addition  to,  cannot  be  made  by  reviewing  authority. .  432  197 

approved  by  reviewing  authority  before  executed.  ...  811  430 

authority  for  execution  of 443  202 

based  on  laws  of  United  States,  State,  etc.,  when.  . . .   314  150 

{   329  157 

capital,  execution  of \    436  199 

L    437  199 

suspension  of 445  203 

certain  offenses  in  time  of  war,  etc 316  150 

commutation  of  (see  Commutation) 453  208 

confirmation  and  execution  by  order  of  officer  ordering 

court,  in  what  cases 816  433 

conviction  of  cowardice  or  fraud 807  428 

date  sentence  takes  effect 318  152 


INDEX  637 


PAR.   PAGE 

Sentences  (continued): 

death,  approval  and  confirmation  of.  in  time  of  war,  ]    437  199 

by  whom \    812  430 

approved,  lequiring  confirmation  by  superior 

authority. .            ....   436  1S9 

how  voted  on 375  174 

in  time  of  peace  to  be  confirmed  by  President. .  437  200 

mandatory,  for  forcing  safeguard 330  157 

not  subject  to  mitigation 


suspended,  when 818  434 

vote  required  for 312  149 

discharge  to  precede  confinement  when  both  given.  .321  153 

discretionary..                                                              .{    £»  }« 

dishonorable  discharge  cannot  be  commuted  by  military 

commander  except  forfeiture  is  included  in.  454  208 

may  be  commuted  by  President 334  160 

should  precede  imprisonment  when  both  given ..  343  163 

with  forfeiture  may  be  mitigated 454  208 

dismissal,  applicable  only  to  officers  or  cadets     332  159 

duly  approved,  requiring  confirmation  of  supe- 
rior authority       436  199 

for  cowardice  or  fraud,  publication  of  sentence.    807  428 

how  commuted     334  1 60 

in  time  of  peace  to  be  confirmed  by  President .   438  200 
in  time  of  war,  approval  of,   by  whom  con- 
firmed    437  200 

legal  effect  of 333  160 

I       QOO  1 KQ 

mandatory  for  certain  offenses j    332  ]60 

may  be  commuted  by  the  President 334  160 

not  subject  to  mitigation  by  military  com-  I    334  160 

mander,  but  by  President \    445  203 

of  officer  under  Article  61 768  410 

should  precede  imprisonment  when    both  are 

awarded 343  163 

suspended,  when        818  434 

duty  of  court  to  vote  on   373  174 

duty  of  reviewing  authority  to  execute 310  148 

exceeding  legal  limit 322  153 

f    310  148 

execution  of  (see  Punishment) : .  •(    436  199 

L    816  433 

extending  beyond  period  of  enlistment 320  153 

fines,  accrue  to  United  States  (see  Fines) 354  167 

forfeitures,  amount  to  be  specifically  stated  in 340  162 

construction  of,  in  (see  Forfeitures) 351  166 

forms  for.  Appendix  E 522 

special  orders  promulgating  Appendix  E 534 

for  purely  military  offense   where  executed 317  151 

ground  for  disapproval  of 170  88 

ha-dlabor {   ™  ]g 


638  INDEX 


PAR.  PACK 

Sentences  (continued)  : 

how  voted  on  ...................................  311  1  48 

imprisonment,  term  ot,  to  be  specified  in  ...........  343  163 

in  excess  ot  law  so  much  as  is  legal  may  be  approved  .  322  153 

jurisdiction  ot  court-martial  over  ..................  310  148 

legally  confirmed  and  executed    by  officer    ordering 

court,  not  subject  to  review  by  President.  ,  .  ......  816  433 

limitation  ot,  tor  certain  offenses  in  time  ot  wai    .....  316  151 

f  310  148 

mnnHatnrv                                                                                                            J  <^0  1^7 

mandatory  ....................................  j  332  16& 

I  836  448 

manner  of  selecting,  when  discretionary  ............  311  148 

month  or  months,  meaning  ot,  in  ..................  319  152 

not  less,  but  may  be  greater  than  prescribed  bystat-  \  316  150 

utes,  when  ..................................  (  313  150 

pardon  and  mitigation  ot  .........................  446  205 

(  313  149 

penitentiary   when  authorized  ...................  \  344  163 

I  804  426 
power  to  commute  cannot  be  exercised  by  military 

commander  ....................................  334  160 

reconsideration  ot.  .  .  ............................  324  154 

reduction  in  grade  Irom  first-class  to  second-class 

privates  ......................................  363  170 

reduction  of  non-commissioned  officers  authorized,  and 

how  worded  it  confinement  is  included  ...........  362  170 

remarks  ot  court  in  connection  with  ................  300  143 

respecting  any  general  officer  must  be  confirmed  by  f  439  201 

President.  .  .................................  I  815  43a 

silent  as  to  date,  begins  when  .......  .  .............  352  166 

stoppages  (see  Stoppages)  .............  .........  {  jj]g  |g& 

suspension  of,  Art.  Ill  ....................  .....  (  ^  ^| 


to  military  prison,  character  ot  offense  .............  317  151 

to  penitentiary  tor  purely  military  offenses,  not  legal  .  804  427 

f  314  150 

to  penitentiary,  when  given,  may  be  mitigated,  when  •{  804  426 

I  804  427 

to  United  States  penitentiary,  when  authorized  ......  315  150 

when  required  to  be  confirmed  by  superior  authority 

other  than  President  ...........................  440  201 

within  legal  limits,  in  discretion  of  court  ............  323  154 

Sentinels  : 

allowing  or  suffering  prisoners  to  escape  ............  776  415 

authority  and  responsibility  ......................  746  367 

execution  of  orders  by,  torce  used  by  .............  <  74^  3g^ 

respect  tor,  by  all  persons  ........................  746  367 

responsibility  and  duty  of,  in  charge  of  prisoners  .......  746  368 


INDEX  639 


PAR.  PAGE 

Sentinels  (continued)  : 

sleeping  on  post  or  leaving  same,  Art.  39  ...........   746  367 

sleeping  on  post,  not  chaigeable  under  Article  62  .....   746  368 

Separate  Brigade  (see  Convening  Authority). 

what  constitutes  .................................     42  22 


Service  of  Charges  (see  Charges) 


8       66 


Service  of  Process  (see  Process) \    114       60 


1    129       66 

f  113  59 
114  60 
695  319 

Service  of  Subpoenas  (see  Subpoenas) 213  - 107 

Service  of  Writ  of  Attachment  (see  Attachment  tor  Witness)  222     111 

Signal  Corps: 

regimental  courts  for 77       42 

Signature  (see  False  Signature): 

.    false,  counterfeiting,  Art.  60 767     402 

Soldiers  (see  Enlisted  Men). 

Solitary  Confinement  (see  Confinement) 369     171 

Special  Orders  (see  Oiders). 

character  ot 17         9 

form  tor  promulgation  of  sentence  ot   court-martial. 

Appendix  E '. 534 

Specifications  (see  Charges  and  Specifications). 

Spies : 

authority  for  trial  of,  includes  "all  persons  " 836     448 

definition  of,  who  considered  as  such   (see  Courts- 
martial) 836     448 

offense,  elements  ot,  must  be  caught  m  the  act 836     449 

punishment  ot,  how  executed I    „?„ 

trial  of,  may  be  by  court-martial  or  by  military  com- 
mission    836     448 

Spoil : 

prohibited,  Art.  55 762     383 

Standing  Mute,  Art.  89  (see  Pleas) 209     105 

State  Courts  (see  Jurisdiction): 

{    112      59 

|        AQ£i         O1  Q 

jurisdiction  over  military  persons -I     ~QQ     ogn 

[  766  397 
State  Laws: 

how  authenticated  and  received  in  evidence 557  252 

judicial  notice  ot 559  253 

State  Secrets  (see  Evidence) 631     287 


640  INDEX 


PAR.  PAGE 

Statement  : 

accused  may  make,  in  defense  .....................   290  137 

appears  in,  or  is  appended  to,  record  ........  :  ......   402  184 

reply  of  judge-advocate  ...................   404  185 

challenged  member  ..............................   389  181 

inconsistent  with  plea  ............................   208  105 

introductory,  of  judge-advocate  ...................    232  116 

Statement  of  Service: 

lorm  of,  Appendix  E  .....  ........................  503 

to  accompany  charges  ............................    130  67 

State  Prison  (see  Penitentiary): 

confinement  in,  when  authorized,  Art.  97  ...........   804  426 

{      64  33 

Statute  of  Limitations,  Art.  103  .................  .  .  .  .  \    186  96 

I    810  429 
general  statute,  absence  from  jurisdiction,  absence,  flee- 

ing from  justice,  what  to  be  proved  ..............    189  98 

application  of,  to  offenses  ...................    188  97 

begins  to  run,  when  ........................    188  97 

desertion  in  time  of  war  ....................    187  97 

matter  of  defense,  must  be  pleaded  ..........   187  97 


not  applicable  to  court  of  inquiry 


not  applicable  to  inferior  courts  or  regimental 

courts  for  doing  justice,  Art.  30  ...........    191  99 

not  applicable  to  previous  convictions  ........   309  147 

not  applicable  to  retiring  boards  .............   508  230 

offense  concealed,  no  impediment  ...........   810  430 

plea  to  be  determined  by  the  court  and  decision 

not  subject  to  review  ....................    190  98 

provisions  of,  apply  to  Arts.  48,  60,  and  71  ____   810  430 

tabular  statement  .........................    194  100 

waiver  of,  by  plea  of  guilty,  but  not  by  plea  of 

not  guilty  ..............................    192  99 

in  cases  of  desertion,  Art.  103  .......... 

1     186       96 

absence  from  United  States,  begins  to  run  I    186  96 

when,  in  time  of  peace  .................  \    193  99 

liability  of  deserter  after  expiration  of  term  of 

enlistment  ..............................   755  378 

not  applicable  in  time  of  war  or  in  lace  of  an 

enemy  .................................    187  97 

Statutes  : 

enacting  Articles  of  War,  Appendix  A  ..............  459 

regarding  care  and  disbursement  of  public  funds..  .  .  <     -,~-,      ,~g 

Statutory  Offenses  (see  Crimes). 

how  created,  elements  ot  .........................   266     129 

Statutory  Provisions: 

authority  to  administer  oaths  in   military  investiga- 

tions .........................................   529     238 


INDEX  641 

PAU.     PAGE 

Statutory  Provisions  (continued) : 

authority  to  administer  oaths  in  military  investiga- 
tions, Appendix  C 482 

denning  court-martial  offenses,  Appendix  A 478 

tor  arrest  and  imprisonment  of  offenders  against  laws 

of  United  States 839     451 

prohibiting  dealing  or  trade  in  captured  or  abandoned 

property 838     450 

prohibiting  trade  with  State  in  rebellion 837     450 

spies,  who  to  be  considered  as.  punishment  of 836     448 

Stealing  (see  Larceny). 

Stoppages : 

authorized  by  law,  etc.,  definition  of,  differ  from  fines 

or  forfeitures 355     167 

entered  on  muster  rolls.  . 356     168 

f  353     166 

for  absence  without  leave ,, \  355     167 

I  754     377 

not  authorized  by  Article  17 724     338 

officers  to  be  notified  of 356     168 

reparation  for  injuries  to  citizens  (see  Art.  54) 761     382 

responsibility  for  loss  or  damage,  how  determined.  .  .  .  357     168 
Striking  Superior  Officer: 

penalty  for  (see  Art.  21 ) 728     344 

Subornation  of  Perjury  (see  Perjury) ... 767     401 

Subpoena: 

affidavit  of  service. .                                                   . .  /  ^14     108 

[  zzz     in 

by  whom  served,  to  be  served  personally 213     107 

duces  tecum 566     257 

f  214     108 

for  civilian  witness \  215     108 

I  220     110 

for  civilian  witness,  for  deposition 252     122 

for  military  persons 213     108 

form  for  civilian  witness,  Appendix  E 523 

form  for  civilian  witness  for  deposition,  Appendix  E  .  524 

form  for,  duces  tecum,  civilian  witness,  Appendix  E  .  .  524 

form  for  military  witness,  Appendix  E 523 

return  of  service,  form  for,  Appendix  E 525 

Substance  of  Issue: 

only  need  be  proved 650     294 

Substitution  of  Punishment  (see  Punishment) 365     170 

Succession  to  Command,  Art.  122 829     437 

Summary  Court: 

a  court-martial  within  meaning  of  appropriation 790     421 

act  establishing  (see  Appendix  B) {  80 

{,  480 

approval  of  sentences .  .  / 

L  od       46 


642  INDEX 

PAR.     PAGE 

Summary  Court  (continued) . 

by  whom  appointed,  not  subject  to  challenge 82  45 

composition  and  constitution  (see  Courts-martial).  .  .     80  43 

delay  in  trial  of  case 85  46 

disposition  of  records  and  reports  of 427  194 

establishment  of,  and  functions <       i~  4o  , 

form  of  record,  Appendix  E 514 

how  and  by  whom  appointed 80  43 

jurisdiction {      jg  *| 

monthly  report  of  cases  (see  Appendix  B) <  ,  <Jj 

power  of  commanding  or  superior  officer  to  remit  or 

mitigate  sentences 80  44 

record,  where  kept 413  189 

Summary  Court  Cases: 

form  of  monthly  report,  Appendix  E   515 

Summary  Court  Officer: 

as  surveying  officer  on  property 536  241 

Summons  for  Military  Witness: 

how  served,  military  channels 213  108 

form  for,  Appendix  E  (see  Subpoenas) 523 

Superintendent  Military  Academy  (see  Military  Academy).     44  23 

Superior  Officer: 

offering   violence   to,   or  disobeying   lawful  order  of 

(see  Art.  21) 728  344 

Suppression  of  Disorder  (see  Article  24) 731  351 

Surgeon's  Report: 

on  alleged  deserter,  to  accompany  charges 130  67 

form  for,  Appendix  E 503 

Surveying  Officer: 

by  whom  designated,  no  power  to  condemn  property.  542  243 

evidence  to  be  submitted  to 541  243 

procedure  of 540  243 

i    540  944 

report,  approval  of,  how  made <     ^44  944 

Surveys    on    Property    (see    Public    Property;    Surveying 

Officer) 536  240 

Suspension  of  Officer  from  Rank,  etc.,  Art.  101  (see  Pun- 
ishment)     337  161 

Suspension  of  Sentence,  Art.  Ill 445  203 

Swearing  of  Court  and  Judge-Advocate  (see  Oath) j    j^|  JJJ 

Sword : 

surrender  of,  when  in  arrest,  Art.  65 99      54 


INDEX  643 

PAR.  PAGE 

Tattooing : 

on  body  prohibited.  Art.  98 368  171 

Taxation : 

persons  residing  on  military  reservation,  under  juris- 
diction of  the  United  States,  not  taxable  by  State. .     702  322 

post  exchange  not  taxable  by  State 703  322 

salary  of  officers  not  liable  to 703  322 

Territorial  Court: 

jurisdiction  of  (see  Jurisdiction) j    ^  ^ 

Testimony : 

amount  necessary  in  civil  cases 604  273 

amount  necessary  in  criminal  cases  (see  Competency 

of  Witness;    Credibility  of    Witness;    Confidential  v 

Communications;  Evidence;  Witnesses) 605  274 

competency  and  credibility  of  witness j    9^6 

(  238  118 

examination  and  cross-examination  of  witnesses!  241  119 

(see  Witnesses) j  242  120 

L  644  293 

examination  by  court 242  120 

hearsay  (see  Evidence) 577  259 

how  given  (see  Witnesses) 233  116 

impeachment  of  (see  Impeachment) 639  290 

incriminating  (see  Criminating  Questions) 634  288 

introduction  of 232  116 

leading  questions 248  121 

may  be  read  over  to  witness 249  121 

objections  to 243  120 

of  accused  (see  Accused) .  263  126 

of  experts  (see  Experts) j    |*4  ^ 

opinion 589  265 

relevancy  of 607  276 

separation  of  witnesses  during 233  116 

to  be  entered  in  full  on  the  record 394  182 

under  oath 238  119 

value  of,  determined  by  court 610  277 

Theft  (see  Larceny) 765  385 

Tie  Vote  (see  Voting) 376  175 

Time  Lost  in  Desertion  (see  Deserter) 754  377 

Treason : 

definition  of 616  280 

evidence  necessary  to  convict  of 587  264 

Trespassers  (see  Employment  of  Troops  to  Enforce  the  Laws) : 

removal  of,  from  military  reservation (note)  691  317 

from  Indian  reservation , 690  315 


644  INDEX 

.  PAR.     PAGE 

Trials,  court-martial  (see  Courts-martial;  Evidence;  Judge- 
Advocate;  Record  of  Courts-martial;  Sentence  and 
Punishment): 
authorized  by  whom  (see  Convening  Authority). 

continuances  (see  Continuance) 176       91 

double  amenability  of  military  persons  to 195     101 

judge-advocate  absent,  cannot  proceed 149       77 

meaning  of  "tried  "  in  Article  102 196     101 

members  absent  during 138       72 

nolle  prosegui,  who  may  enter 211     106 

no  person  to  be  tried  a  second  time   for  the  same  J    194       99 

offense ]    809     429 

order   convening    court    entered    in    record    of    (see 

Orders) 384     179 

quorum  for  (see  Quorum) j    jy?       J* 

Tribunals  (see  Military  Tribunals) 26       13 

Troops : 

Articles  of  War  to  be  read  to,  Art.  128 835     447 

Twice  in  Jeopardy: 

no  person  to  be  placed j    j9^     ^ 

Uniform : 

of  members  of    courts-martial,  judge-advocate,  wit- 
nesses, etc 147      75 

Unwritten  Law: 

consists  of  what;  recognized  by  Article  84 19       10 

Usages : 

become  entitled  to  force  of  customs,  unwritten  law, 

when 20  11 

effect  of 20  11 

foreign,  how  proved 560  253 

local  customs,  when  admissible 20  11 

Variance : 

matters  of  description  to  be  proved 650     294 

Vice- President: 

contemptuous  or  disrespectful  words  toward,  forbid- 
den, Art.  19 726     342 

Violation  of  Pledge  (Art.  61) 768     410 

Violence : 

offering  to  superior  officer 728     344 

reparation  for,  to  person  or  property,  Art.  54 761     382 

toward  persons  bringing  victuals,  etc.,  to  camp  pro- 
hibited, Art.  56 763     383 

Voir  Dire: 

all  questions  and  answers  under  to  be  recorded 388     180 

challenged  members  of  courts-martial j    *gg     -§^ 


INDEX  645 

Voir  Dire  (continued)  : 

challenged  member  of  retiring  board 503  229 

witness  objected  to  as  incompetent 237  118 

Volunteers : 

f      51  26 

courts  for  trial  ot,  how  composed i    134  79 

I    830  439 

definition  of  term 830  439 

eligibility  ol  officers  as  members  of  courts-martial.  .  .  .   134  70 

officers  competent  to  sit  on  courts  for  trial  of  regulars  J    -,  51  ?6 

or  volunteers,  but  not  of  militia ]    j^j*  'Jj 

officers  of  regular  army,  mustered  as 830  439 

regular  officers  not  eligible  to  sit  on  courts-martial  (  51  26 

for  trial  of \  830  439 

subject  to  articles  of  war  and  rules  and  regulations 

governing  regular  army,  Art.  123 830  438 

Voting: 

by  members  of  courts-martial,  order  of j    |j^  ^3 

death  penalty,  majority  required 371  173 

when  mandatory 375  174 

each  member  to  vote 373  174 

on  charges,  method  of 372  173 

on  the  sentence 374  174 

order  of,  Art.  95 370  172 

tie  vote,  effect  of 376  175 

vote,  how  recorded.  . 377  175 

Vouchers  (see  False  Vouchers,  Art.  60): 

to  support  returns  made 715  332 

Waiver: 

cannot  confer   jurisdiction  on  court  illegally  consti- 
tuted      57  31 

Waste: 

penalty  for,  Art.  55 762  383 

: 


'ar  (see  Laws  of  War) 652  296 

effect  of,  on  powers  of  courts-martial,  Art.  105 812  430 

effect  of,  upon  individual  citizen,  property,  and  rights. .  654  297 
existence  of,  determined  by  political  branch  of  govern- 
ment   42  22 

property  destroyed  in,  responsibility  for 655  298 


Warrant : 

arrest  of  offenders  against  United    States  laws,  affi- 
davits necessary,  must  state  what 839     452 

arrest  of  offenders  against  United  States  laws,  from  (    839     451 
whom  obtained \    839     452 

for  person  illegally  in   possession    of  United  States 

property  issued  ito  soldiers 724     341 


646  INDEX 

PAR,  PAGE 
Warrant,  Search: 

affidavits  to  secure,  facts  to  be  stated  in 839  452 

disposition  of  property  found 839  454 

issued  for  search,  in  daytime 839  453 

legality  under  common  law 839  453 

officer  to  adhere  strictly  to  directions 839  454 

secured  from  United  States  authority  when  possible.  .   839  454 

to  secure  United  States  property  in  hands  of  illegal  /    724  341 

possessor \    839  452 

to  whom  issued,  how  used 839  452 

Warrant  of  Attachment  (see  Attachment  for  Witness).  .  . .   221  110 

Watchword : 

definition  of,  penalty  for  making  known  or   giving 

wrong  one.  Art.  44 751  373 

Withdrawal  of  Charges  (see  Nolle  Prosequi) 210  106 

Witnesses: 

absent,  application  for  delay  of  trial,  when  and  by  f    176  91 

whom  made,  etc }    176  92 

accomplices  as 627  284 

do  not  corroborate  each  other  when 627  285 

accounts  of,  in  government  employ,  form  for,  Appendix 

E 529 

accounts  of,  not  in    government    employ,  form  for, 

Appendix  E 528 

f    262  125 

accused  as,  at  "his  own  request,"  in  his  own  behalf. .  \    399  183 

I    550*  247 

accused  as,  cross-examination,  latitude  of 264  126 

subject  to  objection  and  impeachment  as  f    263  126 

other  witnesses j    626  284 

administration  of  oath  to  (see  Oath). 

attachment   for  witnesses,  etc.   (see  Attachment  for 

Witnesses) 221  110 

attendance  at  civil  courts,  compensation  for 216  109 

attendance  of,  at  courts-martial  (see  Subpoena) 212  107 

before  board  of  examination  of  officers  for  promotion, 

sworn,  etc 521  236 

before  board  of  investigation,  may  be  sworn 529  238 

before  examining  board,  how  secured  and  swrorn 521  235 

before  retiring  board,  oath  of 504  230 

before  summary  court,  may  be  paid  expenses,  as  for 

other  courts.  *. 790  421 

by  deposition,  competency  may  be    determined  by 

'  court 798  425 

cannot  be  impeached  by  party  presenting  him 640  291 

civilian  in  employ  of  government,  pay  of 215  108 

civilian  may  be  compelled  to  attend,  when  and  how. . .   220  110 

civilian  not  in  employ  of  government,  pay  of 215  109 

civilian,  refusal  to  appear  or  to  testify,  when  and  how 

punishable 218  109 

civilian,  subpoenas  tor.  in  duplicate,  how  served 214  108 


INDEX  647 

PAR.  PAGE 

Witnesses  (continued) : 

civilians,  rules  governing  accounts  of,  Appendix  E.. . .  530 

f    256  117 

competency,  by  whom  determined •{    611  277 

I    615  279 

objection  to,  when  made,  grounds  of 236  117 

test  of,  by  voir  dire,  oath 237  118 

confidential     public     communications    and    State  f    630  286 

secrets,  not  disclosed  by \    631  287 

conviction  of  infamy  in  another  State  does  not  exclude.  618  281 

court  may  direct  call  of 212  107 

court  may  hear  in  quarters  when  sick 250  122 

courts  of  inquiry,  as  well  as  recorder,  have  power  to  /    469  216 

summon  and  examine,  oath  of \    825  436 

(ooc  117 

«1rt  07-7 

611  27? 

cross-examination,  begins  when 241  120 

leading  questions  may  be  asked 644  293 

subject  to  control  of  court 646  293 

deaf  and  dumb  persons  as 623  282 

deposition  of  (see  Depositions) 251  122 

direct  examination  of  by  judge-advocate,  how  con- 
ducted.  239  119 

direct   examination,  leading  questions  not  asked,  ex- 
cept when 644  292 

direct  questions,  introductory   or  of  identification,/    396  182 

asked \    644  292 

evidence  obtained  by  deposition,  when 250  122 

examination  ot.  by  court. 242  120 

examination  of,  others  excluded  during. 233  116 

rules  governing 238  118 

experts,  when  and  by  what  authority  employed 234  117 

(    215  108 

fees  and  mileage  of \    216  109 

I    217  109 

for  defense,  how  introduced  and  examined |    ggg  jg^ 

form  for  return  of  service  of  subpcena,  Appendix  E. . .  525 
form  (or  subpoena  lor  civilian,  Appendix  E  (see  Sub- 
pcena)   523 

form  tor  summons  of  military.  Appendix  E 523 

form  of  warrant  of  attachment  for.  Appendix  E 525 

greater    latitude    in   cross-examination   of   one    who 

places  himself  on  the  stand 647  294 

husband  and  wife  cannot  testify  against  each  other, 

exception 629  285 

idiots  incompetent  as 622  282 

impeachment  of,  credit  may  be  sustained  by  other 

witnesses. ' 643  292 

f      ftQQ  *?Qn 

impeachment  of,  how.  grounds  for (     „.*  2qi 

impeachment  of,  in  United  States  Courts.  .  . 642  291 

impeachment  of,  record  of  court  of  inquiry  used  in..  .   828  437 


648  INDEX 

PAR.  PAGE 

Witnesses  (continued): 

incompetency,  grounds  of  (see  Competency  of  Wit- 
nesses)     614  278 

incompetency,  how  established 237  118 

incompetent  from  infamy 616  279 

incompetent  from  infamyi  how  established 618  281 

incompetent  from  insanity 622  282 

incompetent  from  perjury  or  subornation  of  perjury. .   550  247 

incompetent  from  interest,  when 625  283 

incompetent  from  intoxication,  when 624  283 

incompetent  from  want  of  mental  capacity,  , 620  281 

incompetent,  not  allowed  to  testify 612  277 

incompetent,  on  conviction  of  felony,  cnmen  falsi,  or 

treason 616  280 

incriminating  evidence  (see  Criminating  Evidence). .  .   634  288 
in  Philippine  Islands,  employees  of  civil  government, 

how  paid 224  112 

fees  of 223  112 

refusing  to  appear  or  qualify,  punishable,  how, 

and  when 223  111 

introduction  of,  before  court 232  116 

judge-advocate  as  witness,  oath  taken  by,  adminis-f    233  116 

tered  by  president  of  court j    799  425 

privileged  communications 628  285 

not  extending  to  clergymen,  physicians,  etc.  .  ,  633  287 

when  inadmissible  (see  Confident ial  Comm uni  -  !    ftQV  OQT 

eations) •••••!    632  287 

leading  questions  to,  character  of,  not   permitted,  /    248  121 

exceptions \    644  292 

making  deposition,  entitled  to  fees,  mileage,  etc 258  124 

may  be  called  to  testify  by  opposite  party 645  293 

may  be  recalled  to  change  statement,  when 648  294 

may  testify  against  own  interest. 625  283 

may  waive  right  to  not    answer   incriminating  ques 

tion 638  290 

member  of  court  may  testify 233  1 16 

military,  when  required  to  answer  incriminating  ques- 
tion    637  289 

motive  may  be  proved  by 651  295 

not  compelled  to  incriminate  himself,  etc.  (see  Crim- 
inating Questions) 238  1 18 

not  necessary  to  be  resworn  in  same  case 799  425 

oath  of,  before  courts-martial,  form,  etc 238  119 

administered  by  judge-advocate 239  119 

before    court  of  inquiry,  administered  by  re- 
corder    470  216 

before  military  board  of  investigation,  admin- 
istered by  recorder  or  president 529  238 

objection  to  competency,  when  made 613  278 

objection  to  questions  to  or  answers  of,  grounds  of  ...   243  120 

officer  paying  fees  to  be  reimbursed 219  110 

once  sworn  need  not  be  resworn  in  same  case 799  425 

pardon,  as  affecting  competency  of 617  280 


INDEX  649 


PAR.     PAGE 

Witnesses  (continued) : 

privileged  communications,  what  are  inadmissible  (see 

Confidential  Communications) 628  285 

presumption  as  to  competency  and  credibility 612  277 

questions  and  answers  of,  to  be  recorded 240  119 

questions  asked  after  examination  is  closed,  how  re- 
corded, etc 246  121 

question  by  member  of  court,  objected  to,  how  re- 
corded, admissibility,  how  decided 244  120 

question,  objection  made  to,  reason  must  be  stated, 

how  decided  by  court-. 245  120 

question  to  or  answers  of,  may  be  objected  to 400  183 

questions  to,  to  be  written  out  in  full,  when 247  121 

recalled  in  same  case  not  again  sworn 242  120 

redirect  examination  of 241  120 

refusing  to  appear  or  to  testify  before  court-martial,  f      72  38 

how  punished  (see  Contempt  of  Court) \      73  39 

sick  or  absent,  action  of  court 250  121 

subpoena  for  (see  Subpoena) 212  107 

substance  of  issue  only  need  be  proved  by 650  294 

summoned  by  judge-advocate  (see  Subpcena) 212  107 

testimony  may  be  read  to,  and  corrected 249  121 

to  state  name,  etc.,  and  identify  accused 396  182 

weight  of  affirmative  and  negative  evidence  of 649  294 

writ  of  attachment  for 221  110 

writ  of  attachment,  recorder  of  court  of  inquiry  can- 
not issue  (see  Attachment  for  Witness) 469  216 

Writings: 

how  introduced  and  identified 562  254 

proved  by  comparison,  when 563  255 

public  records 561  254 

Writ  of  Attachment: 

for  witnesses  before  court-martial 221  110 

for  witnesses  before  court  of  inquiry,  not  issuable.  . .  .   469  216 
for  witnesses,  how  enforced  (see  Attachment  for  Wit- 
nesses)     222  111 

Writ  of  Habeas  Corpus  (see  Habeas  Corpus) : 

instructions  as  to  return  to,  Appendix  E 536 

issued  by  United  States  Courts  for  enlisted  men  or  gen- 
eral prisoners,  return  to,  report  of  .  .  . 228  113 

issued  by  United  States  Court  for  witnesses    held, 

return  to 226  112 

issued  by  State  Court  or  judge  for  enlisted  man  or  gen- 
eral prisoner,  return  to 229  114 

issued  by  State  Court  for  witness  held,  return  to 227  113 

issued  in  case  of  a  minor,  Appendix  E 537 

issued  in  the  Philippines  against  military  officer  or  !    2Qn  11  c 

soldier  detaining  prisoner,  return  to 1    ^31 

Writ  of  Prohibition: 

issue  by  United  States  Courts  in  court-martial  cases, 

doubtful 458  210 


650  INDEX 


PAR.     PAGE 

Writ  of  Prohibition  (continued) : 

issued  in  some  States,  under  their  laws,  to  militia 

courts-martial 458  211 

object  of,  not  granted  on  ground  of  irregularity  of  pro- 
ceedings, or  to  correct  errors  of  courts-martial 458  210 

views  of  Supreme  Court  concerning 458     210 

Written  Military  Law: 

consists  of  what  (see  Articles  of  War;  Army  Regula-  t        „         - 
tions;    Decisions  of  Courts;    Opinions;    Orders;  \      A 
Statutory  Provisions) L 

Wrongs : 

to  civilians,  reparation  for,  Art.  54 761     382 

to  officers,  redress  of,  Art.  29 736     356 

to  soldier  by  officer,  Art.  30  (see  Regimental  Court  for 

doing  justice) 737     357 

Wounding: 

by  shooting  or  slabbing,  malice  and  intent 765     394 


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Gore's  Elements  of  Geodesy 8vo,  2  50 

Hayford's  Text-book  of  Geodetic  Astronomy 8vo,  3  oo 

Merriman's  Elements  of  Precise  Surveying  and  Geodesy 8vo,  2  50 

*  Michie  and  Harlow's  Practical  Astronomy 8vo,  3  oo 

*  White's  Elements  of  Theoretical  and  Descriptive  Astronomy i2mo  oo 

BOTANY. 

Davenport's  Statistical  Methods,  with  Special  Reference  to  Biological  Variation. 

i6mo,  morocco,  i   25 

Thome  and  Bennett's  Structural  and  Physiological  Botany i6mo,  2  25 

Westermaier's  Compendium  of  General  Botany.     (Schneider.) 8vo,  2  oo 

3 


CHEMISTRY. 

*  Abegg's  Theory  of  Electrolytic  Dissociation.    (Von  Ende.) i2mo,  i  25 

Adriance's  Laboratory  Calculations  and  Specific  Gravity  Tables i2mo,  i  25 

Alexeyeff's  General  Principles  of  Organic  Synthesis.     (Matthews.) 8vo,  3  oo 

Allen's  Tables  for  Iron  Analysis 8vo,  3  oo 

Arnold's  Compendium  of  Chemistry.     (Mandel.) Small  8vo,  3  50 

Austen's  Notes  for  Chemical  Students i2mo,  i  50 

Bernadou's  Smokeless  Powder. — Nitro-cellulose,  and  Theory  of  the  Cellulose 

Molecule i2mo,  2  50 

*  Browning's  Introduction  to  the  Rarer  Elements 8vo,  i  50 

Brush  and  Penfield's  Manual  of  Determinative  Mineralogy 8vo,  4  oo 

*  Claassen's  Beet-sugar  Manufacture.     (Hall  and  Rolfe.) 8vo,  3  oo 

Classen's  Quantitative  Chemical  Analysis  by  Electrolysis.    (Boltwood.).  .8vo,  3  oo 

Cohn's  Indicators  and  Test-papers i2mo,  2  oo 

Tests  and  Reagents 8vo,  3  oo 

Crafts's  Short  Course  in  Qualitative  Chemi^.l  Analysis.   (Schaeffer.).  .  .i2mo,  i  50 

*  Danneel's  Electrochemistry.     (Merriam.) i2mo,  i   25 

Dolezalek's  Theory  of  the   Lead  Accumulator   (Storage   Battery).        (Von 

Ende.) i2mo,  2  50 

Drechsel's  Chemical  Reactions.     (Merrill.) i2mo,  i  25 

Duhem's  Thermodynamics  and  Chemistry.     (Burgess.) 8vo,  4  oo 

Eissler's  Modern  High  Explosives 8vo,  4  oo 

Effront's  Enzyme^  ;nd  their  Applications.     (Prescott.) 8vo,  3  oo 

Erdmann's  Introduction  to  Chemical  Preparations.     (Dunlap.) i2mo,  i   25 

Fletcher's  Practical  Instructions  in  Quantitative  Assaying  with  the  Blowpipe. 

i2mo,  morocco,  i  50 

Fowler's  Sewage  Works  Analyses i2mo,  2  oo 

Fresenius's  Manual  of  Qualitative  Chemical  Analysis.     (Wells.) 8vo,  5  oo 

Manual  of  Qualitative  Chemical  Analysis.  Part  I.  Descriptive.  (Wells.)  8vo,  3  oo 
System   of   Instruction    in    Quantitative    Chemical   Analysis.      (Cohn.) 

2    VOls 8VO,   12  50 

Fuertes's  Water  and  Public  Health i2mo,  i  50 

Furman's  Manual  of  Practical  Assaying 8vo,  3  oo 

*  Getman's  Exercises  in  Physical  Chemistry i2mo,  2  oo 

Gill's  Gas  and  Fuel  Analysis  for  Engineers i2mo,  i  25 

*  Gooch  and  Browning's  Outlines  of  Qualitative  Chemical  Analysis.  Small  8vo,  i  25 

Grotenfelt's  Principles  of  Modern  Dairy  Practice.     (Woll.) i2mo,  2  oo 

Groth's  Introduction  to  Chemical  Crystallography  (Marshall) i2mo,  i  25 

Hammarsten's  Text-book  of  Physiological  Chemistry.     (Mandel.) 8vo,  4  oo 

Helm's  Principles  of  Mathematical  Chemistry.     (Morgan.) i2mo,  i  50 

Bering's  Ready  Reference  Tables  (Conversion  Factors) i6mo,  morocco,  2  50 

Hind's  Inorganic  Chemistry 8vo,  3  oo 

*  Laboratory  Manual  for  Students I2mo,  i  oo 

Holleman's  Text-book  of  Inorganic  Chemistry.     (Cooper.) 8vo,  2  50 

Text-book  of  Organic  Chemistry.     (Walker  and  Mott.) 8vo,  2  50 

*  Laboratory  Manual  of  Organic  Chemistry.     (Walker.) I2mo,  i  oo 

Hopkins's  Oil-chemists'  Handbook 8vo,  3  oo 

Iddings's  Rock  Minerals 8vo,  5  oo 

Jackson's  Directions  for  Laboratory  Work  in  Physiological  Chemistry.  .8vo,  i  25 

Keep's  Cast  Iron 8vo,  2  50 

Ladd's  Manual  of  Quantitative  Chemical  Analysis i2mo,  i  oo 

Landauer's  Spectrum  Analysis.     (Tingle.) 8vo,  3  oo 

*  Langworthy  and  Austen.        The   Occurrence   of  Aluminium  in  Vegetable 

Products,  Animal  Products,  and  Natural  Waters 8vo,  2  oo 

Lassar-Cohn's  Application  of  Some  General  Reactions  to  Investigations  in 

Organic  Chemistry.  (Tingle.) i2mo,  i  oo 

Leach's  The  Inspection  and  Analysis  of  Food  with  Special  Reference  to  State 

Control 8vo,  7  50 

Lob's  Electrochemistry  of  Organic  Compounds.  (Lorenz.) 8vo,  3  oo 

4 


Lodge's  Notes  on  Assaying  and  Metallurgical  Laboratory  Experiments.  ..  .8vo,    3  oo 

Low's  Technical  Method  of  Ore  Analysis 8vo,    3  oo 

Lunge's  Techno-chemical  Analysis.     (Cohn.) I2mo      i  oo 

*  McKay  and  Larsen's  Principles  and  Practice  of  Butter-making 8vo,     i  50 

Mandel's  Handbook  for  Bio-chemical  Laboratory I2mo,     i  50 

*  Martin's  Laboratory  Guide  to  Qualitative  Analysis  with  the  Blowpipe.  .  I2mo,         60 
Mason's  Water-supply.     (Considered  Principally  from  a  Sanitary  Standpoint.) 

3d  Edition,  Rewritten 8vo,    4  oo 

Examination  of  Water.     (Chemical  and  Bacteriological.) i2mo,     i  25 

Matthew's  The  Textile  Fibres 8vo,    3  50 

Meyer's  Determination  of  Radicles  in  Carbon  Compounds.     (Tingle.).  .  i2mo, 

Miller's  Manual  of  Assaying i2mo, 

Cyanide  Process i2mo, 

Minet's  Production  of  Aluminum  and  its  Industrial  Use.     (Waldo.) .  .  .  .  i2mo, 


Mixter's  Elementary  Text-book  of  Chemistry I2mo, 

Morgan's  An  Outline  of  the  Theory  of  Solutions  and  its  Results i2mo, 


oo 

oo 
oo 
50 
50 

00 

Elements  of  Physical  Chemistry i2mo,  3  oo 

*  Physical  Chemistry  for  Electrical  Engineers i2mo,  5  oo 

Morse's  Calculations  used  in  Cane-sugar  Factories i6mo,  morocco,  i  50 

*  Muir's  History  of  Chemical  Theories  and  Laws 8vo,  4  oo 

Mulliken's  General  Method  for  the  Identification  of  Pure  Organic  Compounds. 

Vol.  I Large  8vo,  5  oo 

O'Brine's  Laboratory  Guide  in  Chemical  Analysis 8vo,  oo 

O'Driscoll's  Notes  on  the  Treatment  of  Gold  Ores 8vo,  oo 

Ostwald's  Conversations  on  Chemistry.     Part  One.     (Ramsey.) 12010,  50 

"                           "             Part  Two.     (Turnbull.) i2mo,  oo 

*  Pauli's  Physical  Chemistry  in  the  Service  of  Medicine.     (Fischer.) .  .  .  .  I2mo,  25 

*  Penfield's  Notes  on  Determinative  Mineralogy  and  Record  of  Mineral  Tests. 

8vo,  paper,  50 

Pictet's  The  Alkaloids  and  their  Chemical  Constitution.     (Biddle.) 8vo,  5  oo 

Pinner's  Introduction  to  Organic  Chemistry.     (Austen,.) I2mo,  i  50 

Poole's  Calorific  Power  of  Fuels 8vo,  3  oo 

Prescott  and  Winslow's  Elements  of  Water  Bacteriology,  with  Special  Refer- 
ence to  Sanitary  Water  Analysis I2mo,  i  25 

*  Reisig's  Guide  to  Piece-dyeing -. 8vo,  25  oo 

Richards  and  Woodman's  Air,  Water,  and  Food  from  a  Sanitary  Standpoint.. 8vo,  2  oo 
Ricketts  and  Russell's  Skeleton  Notes  upon  Inorganic  Chemistry.     (Part  I. 

Non-metallic  Elements.) 8vo,  morocco,  75 

Ricketts  and  Miller's  Notes  on  Assaying 8vo,  3  oo 

Rideal's  Sewage  and  the  Bacterial  Purification  of  Sewage 8vo,  4  oo 

Disinfection  and  the  Preservation  of  Food 8vo,  4  oo 

Riggs's  Elementary  Manual  for  the  Chemical  Laboratory 8vo.  i  25 

Robine  and  Lenglen's  Cyanide  Industry.     (Le  Clerc.) 8vo,  4  oo 

Ruddiman's  Incompatibilities  in  Prescriptions 8vo,  2  oo 

*  Whys  in  Pharmacy i2mo,  i  oo 

Sabin's  Industrial  and  Artistic  Technology  of  Paints  and  Varnish 8vo,  3  oo 

Salkowski's  Physiological  and  Pathological  Chemistry.     (Orndorff.) 8vo,  2  50 

Schimpf's  Text-book  of  Volumetric  Analysis i2mo,  2  50 

Essentials  of  Volumetric  Analysis i2mo,  i  25 

*  Qualitative  Chemical  Analysis 8vo,  i  25 

Smith's  Lecture  Notes  on  Chemistry  for  Dental  Students 8vo,  2  50 

Spencer's  Handbook  for  Chemists  of  Beet-sugar  Houses i6mo,  morocco,  3  oo 

Handbook  for  Cane  Sugar  Manufacturers i6mo,  morocco,  3  oo 

Stockbridge's  Rocks  and  Soils 8vo,  2  50 

*  Tillman's  Elementary  Lessons  in  Heat 8vo,  i  50 

*  Descriptive  General  Chemistry 8vo,  3  oo 

Treadwell's  Qualitative  Analysis.     (Hall.) 8vo,  3  oo 

Quantitative  Analysis.     (Hall.) 8vo,  4  oo 

Turneaure  and  Russell's  Public  Water-supplies 3vo,  5  oa 

5 


Van  Deventer's  Physical  Chemistry  for  Beginners.     (Boltwood.) i2mo,  i  50 

*  Walke's  Lectures  on  Explosives 8vo,  4  oo 

Ware's  Beet-sugar  Manufacture  and  Refining Small  8vo,  cloth,  4  oo 

Washington's  Manual  of  the  Chemical  Analysis  of  Rocks 8vo,  2  oo 

Weaver's  Military  Explosives 8vo,  3  oo 

Wehrenfennig's  Analysis  and  Softening  of  Boiler  Feed- Water 8vo,  4  oo 

Wells's  Laboratory  Guide  in  Qualitative  Chemical  Analysis 8vo,  i  50 

Short  Course  in  Inorganic  Qualitative  Chemical  Analysis  for  Engineering 

Students , I2mo>  T  5O 

Text-book  of  Chemical  Arithmetic I2mo,  i  25 

Whipple's  Microscopy  of  Drinking-water 8vo,  3  50 

Wilson's  Cyanide  Processes i2mo,  i  50 

Chlorination  Process i2mo,  i  50 

Winton's  Microscopy  of  Vegetable  Foods 8vo,  7  50 

Wulling's    Elementary    Course    in  Inorganic,  Pharmaceutical,  and  Medical 

Chemistry 12mo>  2  oo 


CIVIL  ENGINEERING. 

BRIDGES    AND    ROOFS.       HYDRAULICS.       MATERIALS    OF    ENGINEERING. 
RAILWAY  ENGINEERING. 

Baker's  Engineers'  Surveying  Instruments I2mo,  3  oo 

Bixby's  Graphical  Computing  Table Paper  19^X24!  inches.  25 

Breed  and  Hosmer's  Principles  and  Practice  of  Surveying 8vo,  3  oo 

*  Burr's  Ancient  and  Modern  Engineering  and  the  Isthmian  Canal 8vo,  3  50 

Comstock's  Field  Astronomy  for  Engineers 8vo,  2  50 

Crandall's  Text-book  on  Geodesy  and  Least  Squares 8vo,  3  oo 

Davis's  Elevation  and  Stadia  Tables 8vo,  i  oo 

Elliott's  Engineering  for  Land  Drainage i2mo,  i  50 

Practical  Farm  Drainage i2mo,  i  oo 

*Fiebeger's  Treatise  on  Civil  Engineering 8vo,  5  oo 

Flemer's  Phototopographic  Methods  and  Instruments 8vo,  5  oo 

Folwell's  Sewerage.     (Designing  and  Maintenance.) 8vo,  3  oo 

Freitag's  Architectural  Engineering.     2d  Edition,  Rewritten 8vo,  3  50 

French  and  Ives's  Stereotomy 8vo,  2  50 

Goodhue's  Municipal  Improvements I2mo,  i  75 

Gore's  Elements  of  Geodesy 8vo,  2  50 

Hayford's  Text-book  of  Geodetic  Astronomy 8vo,  3  oo 

Bering's  Ready  Reference  Tables  (Conversion  Factors') i6mo,  morocco,  2  50 

Howe's  Retaining  Walls  for  Earth i2mo,  i  25 

*  Ives's  Adjustments  of  the  Engineer's  Transit  and  Level i6mo,  Bds.  25 

Ives  and  Hilts's  Problems  in  Surveying i6mo,  morocco,  i  50 

Johnson's  (J.  B.)  Theory  and  Practice  of  Surveying Small  8vo,  4  oo 

Johnson's  (L.  J.)  Statics  by  Algebraic  and  Graphic  Methods 8vo,  2  oo 

Laplace's  Philosophical  Essay  on  Probabilities.    (Truscott  and  Emory.) .  i2mo,  2  oo 

Mahan's  Treatise  on  Civil  Engineering.     (1873.)     (Wood.) 8vo,  5  oo 

*  Descriptive  Geometry 8vo,  i  50 

Merriman's  Elements  of  Precise  Surveying  and  Geodesy 8vo,  2  50 

Merriman  and  Brooks's  Handbook  for  Surveyors i6mo,  morocco,  2  oo 

Nugent's  Plane  Surveying 8vo,  3  50 

Ogden's  Sewer  Design I2mo,  2  oo 

Parsons's  Disposal  of  Municipal  Refuse 8vo,  2  oo 

Patton's  Treatise  on  Civil  Engineering 8vo  half  leather,  7  50 

Reed's  Topographical  Drawing  and  Sketching 4to,  5  oo 

Rideal's  Sewage  and  the  Bacterial  Purification  of  Sewage .8vo,  4  oo 

Siebert  and  Biggin's  Modern  Stone-cutting  and  Masonry 8vo,  i  50 

6 


Smith's  Manual  01  Topographical  Drawing.     (McMillan.) 8vo,  2  50 

Sondericker's  Graphic  Statics,  with  Applications  to  Trusses,  Beams,  and  Arches. 

8vo,  2  oo 

Taylor  and  Thompson's  Treatise  on  Concrete,  Plain  and  Reinforced 8vo,  5  oo 

*  Trautwine's  Civil  Engineer's  Pocket-book i6mo,  morocco,  5  oo 

Venable's  Garbage  Crematories  in  America 8vo,  2  oo 

Wait's  Engineering  and  Architectural  Jurisprudence 8vo  6  oo 

Sheep,  6  50 

Law  of  Operations  Preliminary  to  Construction  in  Engineering  and  Archi- 
tecture  8vo,  5  oo 

Sheep,  5  50 

Law  of  Contracts 8vo,  3  oo 

Warren's  Stereotomy — Problems  in  Stone-cutting 8vo,  2  50 

Webb's  Problems  in  the  Use  and  Adjustment  of  Engineering  Instruments. 

i6mo,  morocco,  i  25 

Wilson's  Topographic  Surveying 8vo,  3  50 


BRIDGES  AND   ROOFS. 

Boiler's  Practical  Treatise  on  the  Construction  of  Iron  Highway  Bridges.  .8vo,  2  oo 

*       Thames  River  Bridge 4to,  paper,  5  oo 

Burr's  Course  on  the  Stresses  in  Bridges  and  Roof  Trusses,  Arched  Ribs,  and 

Suspension  Bridges 8vo,  3  50 

Burr  and  Falk's  Influence  Lines  for  Bridge  and  Roof  Computations 8vo,  3  oo 

Design  and  Construction  of  Metallic  Bridges 8vo  5  oo 

Du  Bois's  Mechanics  of  Engineering.     Vol.  II Small  4to,  10  oo 

Foster's  Treatise  on  Wooden  Trestle  Bridges 4to,  5  oo 

Fowler's  Ordinary  Foundations 8vo,  3  50 

Greene's  Roof  Trusses 8vo,  i  25 

Bridge  Trusses 8vo,  2  50 

Arches  in  Wood,  Iron,  and  Stone 8vo  2  50 

Howe's  Treatise  on  Arches 8vo,  4  oo 

Design  of  Simple  Roof -trusses  in  Wood  and  Steel » 8vo,  2  oo 

Symmetrical  Masonry  Arches 8vo,  2  50 

Johnson,  Bryan,  and  Turneaure's  Theory  and  Practice  in  the  Designing  of 

Modern  Framed  Structures Small  410,  10  oo 

Merriman  and  Jacoby's  Text-book  on  Roofs  and  Bridges: 

Part  I.     Stresses  in  Simple  Trusses 8vo,  2  50 

Part  II.    Graphic  Statics 8vo,  2  50 

Part  III.  Bridge  Design 8vo,  2  50 

Part  IV.   Higher  Structures 8vo,  2  50 

Morison's  Memphis  Bridge 4to,  10  oo 

Waddell's  De  Pontibus,  a  Pocket-book  for  Bridge  Engineers.  .  i6mo,  morocco,  2  oo 

*  Specifications  for  Steel  Bridges i2mo,  50 

Wright's  Designing  of  Draw-spans.     Two  parts  in  one  volume 8vo,  3  50 


HYDRAULICS. 

Barnes's  Ice  Formation 8vo,  3  oo 

Bazin's  Experiments  upon  the  Contraction  of  the  Liquid  Vein  Issuing  from 

an  Orifice.     (Trautwine.) 8vo,  2  oo 

Bovey's  Treatise  on  Hydraulics 8vo,  5  oo 

Church's  Mechanics  of  Engineering 8vo,  6  oo 

Diagrams  of  Mean  Velocity  of  Water  in  Open  Channels paper,  i  50 

Hydraulic  Motors 8vo,  2  oo 

Coffin's  Graphical  Solution  of  Hydrr.ulic  Problems i6mo,  morocco,  2  50 

Flather's  Dynamometers,  and  the  Measurement  of  Power I2mo,  3  oo 

7 


Folwell's  Water-supply  Engineering 8vo,  4  oo 

Frizell's  Water-power 8vo,  5  oo 

Fuertes's  Water  and  Public  Health i2mo,  i  50 

Water-filtration  Works i2mo,  2  50 

Ganguillet  and  Kutter's  General  Formula  for  the  Uniform  Flow  of  Water  in 

Rivers  and  Other  Channels.     (Hering  and  Trautwine.) 8vo,  4  oo 

Hazen's  Filtration  of  Public  Water-supply 8vo,  3  oo 

Hazlehurst's  Towers  and  Tanks  for  Water- works 8vo,  2  50 

Herschel's  115  Experiments  on  the  Carrying  Capacity  of  Large,  Riveted,  Metal 

Conduits 8vo,  2  oo 

Mason's  Water-supply.     (Considered  Principally  from  a  Sanitary  Standpoint.) 

8vo,  4  oo 

Merriman's  Treatise  on  Hydraulics 8vo,  5  oo 

*  Michie's  Elements  of  Analytical  Mechanics 8vo,  4  oo 

Schuyler's   Reservoirs   for   Irrigation,   Water-power,   and   Domestic   Water- 
supply Large  8vo ,  5  oo 

*  Thomas  and  Watt's  Improvement  of  Rivers '. 4to,  6  oo 

Turneaure  and  Russell's  Public  Water-supplies 8vo,  5  oo 

Wegmann's  Design  and  Construction  of  Dams 4to,  5  oo 

Water-supply  of  the  City  of  New  York  from  1658  to  1895 4to,  10  oo 

Whipple's  Value  of  Pure  Water Large  i2mo,  i  oo 

Williams  and  Hazen's  Hydraulic  Tables 8vo,  i  50 

Wilson's  Irrigation  Engineering Small  8vo,  4  oo 

Wolff's  Windmill  as  a  Prime  Mover 8vo,  3  oo 

Wood's  Turbines 8vo,  2  50 

Elements  of  Analytical  Mechanics 8vo,  3  oo 


MATERIALS  OF  ENGINEERING. 

Baker's  Treatise  on  Masonry  Construction 8vo,  5  oo 

Roads  and  Pavements 8vo,  5  oo 

Black's  United  States  Public  Works Oblong  4to,  5  oo 

*  Bovey's  Strength  of  Materials  and  Theory  of  Structures 8vo,  7  50 

Burr's  Elasticity  and  Resistance  of  the  Materials  of  Engineering 8vo,  7  50 

Byrne's  Highway  Construction 8vo,  5  oo 

Inspection  of  the  Materials  and  Workmanship  Employed  in  Construction. 

i6mo,  3  oo 

Church's  Mechanics  of  Engineering 8vo,  6  oo 

Du  Bois's  Mechanics-of  Engineering.     Vol.  I. Small  4to,  7  So 

*Eckel's  Cements,  Limes,  and  Plasters 8vo,  6  oo 

Johnson's  Materials  of  Construction Large  8vo,  6  oo 

Fowler's  Ordinary  Foundations 8vo,  3  50 

Graves's  Forest  Mensuration 8vo,  4  oo 

*  Greene's  Structural  Mechanics 8vo,  2  50 

Keep's  Cast  Iron 8vo,  2  50 

Lanza's  Applied  Mechanics 8vo,  7  50 

Marten's  Handbook  on  Testing  Materials.     (Henning.)     2  vols 8vo,  7  So 

Maurer's  Technical  Mechanics 8vo,  4  °o 

Merrill's  Stones  for  Building  and  Decoration 8vo,  5  oo 

Merriman's  Mechanics  of  Materials 8vo,  5  oo 

*  Strength  of  Materials I2tno,  i  oo 

Metcalf's  Steel.     A  Manual  for  Steel-users i2mo,  2  oo 

Patton's  Practical  Treatise  on  Foundations 8vo,  5  oo 

Richardson's  Modern  Asphalt  Pavements 8vo,  3  oo 

Richey's  Handbook  for  Superintendents  of  Construction i6mo,  mor.,  4  oo 

*  Ries's  Clays:  Their  Occurrence,  Properties,  and  Uses 8vo,  5  oo 

Rockwell's  Roads  and  Pavements  in  France i2mo,  i  25 

8 


Sabin's  Industrial  and  Artistic  Technology  of  Paints  and  Varnish 8vo,  3  oo 

Smith's  Materials  of  Machines i2mo,  i  oo 

Snow's  Principal  Species  of  Wood 8vo,  3  50 

Spalding's  Hydraulic  Cement 12 mo,  2  oo 

Text-book  on  Roads  and  Pavements i2mo,  2  oo 

Taylor  and  Thompson's  Treatise  on  Concrete,  Plain  and  Reinforced 8vo,  5  oo 

Thurston's  Materials  of  Engineering.     3  Parts 8vo,  8  oo 

Part  I.     Non-metallic  Materials  of  Engineering  and  Metallurgy 8vo,  2  oo 

Part  II.     Iron  and  Steel , 8vo,  3  50 

Part  III.     A  Treatise  on  Brasses,  Bronzes,  and  Other  Alloys  and  their 

Constituents 8vo,  2  50 

Tillson's  Street  Pavements  and  Paving  Materials 8vo,  4  oo 

Waddell's  De  Pontibus.    (A  Pocket-book  for  Bridge  Engineers.).  .i6mo,  mor.,  2  oo 

*         Specifications  for  Steel  Bridges 12 mo,  50 

Wood's  (De  V.)  Treatise  on  the  Resistance  of  Materials,  and  an  Appendix  on 

the  Preservation  of  Timber 8vo,  2  oo 

Wood's  (De  V.)  Elements  of  Analytical  Mechanics 8vo,  3  oo 

Wood's  (M.  P.)  Rustless  Coatings:    Corrosion  and  Electrolysis  of  Iron  and 

Steel 8vo,  4  oo 


RAILWAY  ENGINEERING. 

Andrew's  Handbook  for  Street  Railway  Engineers 3x5  inches,  morocco,  I  25 

Berg's  Buildings  and  Structures  of  American  Railroads 4to,  5  oo 

Brook's  Handbook  of  Street  Railroad  Location i6mo,  morocco,  i  50 

Butt's  Civil  Engineer's  Field-book i6mo,  morocco,  2  50 

Crandall's  Transition  Curve x6mo,  morocco,  I  50 

Railway  and  Other  Earthwork  Tables 8vo,  i  50 

Dawson's  "Engineering"  and  Electric  Traction  Pocket-book.  .  i6mo.  morocco,  5  oo 

Dredge's  History  of  the  Pennsylvania  Railroad:    (1879) Paper,  5  oo 

Fisher's  Table  of  Cubic  Yards Cardboard,  25 

Godwin's  Railroad  Engineers'  Field-book  and  Explorers'  Guide.  .  .  i6mo,  mor.,  2  50 
Hudson's  Tables  for  Calculating  the  Cubic  Contents  of  Excavations  and  Em- 
bankments  8vo,  i  oo 

Molitor  and  Beard's  Manual  for  Resident  Engineers i6mo,  i  oo 

Nagle's  Field  Manual  for  Railroad  Engineers i6mo,  morocco,  3  oo 

Philbrick's  Field  Manual  for  Engineers i6mo,  morocco,  3  oo 

Searles's  Field  Engineering i6mo,  morocco,  3  oo 

Railroad  Spiral i6mo,  morocco,  i  50 

Taylor's  Prismoidal  Formulae  and  Earthwork 8vo,  i  50 

*  Trautwine's  Method  of  Calculating  the  Cube  Contents  of  Excavations  and 

Embankments  by  the  Aid  of  Diagrams 8vo,  2  oo 

The  Field  Practice  of  Laying  Out  Circular  Curves  for  Railroads. 

I2mo,  morocco,  2  50 

Cross-section  Sheet Paper,  25 

Webb's  Railroad  Construction i6mo,  morocco,  5  oo 

Economics  of  Railroad  Construction Large  i2tuo,  2  50 

Wellington's  Economic  Theory  of  the  Location  of  Railways Small  8vo,  5  oo 


DRAWING. 

Barr's  Kinematics  of  Machinery 8vo,  2  50 

*  Bartlett's  Mechanical  Drawing 8vo,  3  oo 

*  "                    "                    "        Abridged  Ed 8vo,  i  50 

Coolidge's  Manual  of  Drawing 8vo,  paper,  i  oo 

9 


Coolidge  and  Freeman's  Elements  of  General  Drafting  for  Mechanical  Engi- 
neers  Obiong  4to,  2  50 

Durley's  Kinematics  of  Machines 8vo,  4  oo 

Emch's  Introduction  to  Projective  Geometry  and  its  Applications 8vo,  2  50 

Hill's  Text-book  on  Shades  and  Shadows,  and  Perspective 8vo,  2  oo 

Jamison's  Elements  of  Mechanical  Drawing 8vo,  2  50 

Advanced  Mechanical  Drawing 8vo,  2  oo 

Jones's  Machine  Design: 

Part  I.     Kinematics  of  Machinery 8vo,  i  50 

Part  II.     Form,  Strength,  and  Proportions  of  Parts 8vo,  3  oo 

MacCord's  Elements  of  Descriptive  Geometry 8vo,  3  oo 

Kinematics;   or,  Practical  Mechanism 8vo,  5  oo 

Mechanical  Drawing 4to,  4  oo 

Velocity  Diagrams 8vo,  i  50 

MacLeod's  Descriptive  Geometry Small  8vo,  i  50 

*  Mahan's  Descriptive  Geometry  and  Stone-cutting 8vo,  i   50 

Industrial  Drawing.  (Thompson.) 8vo,  3  50 

Moyer's  Descriptive  Geometry 8vo,  2  oo 

Reed's  Topographical  Drawing  and  Sketching 4to,  5  oo 

Reid's  Course  in  Mechanical  Drawing 8vo,  2  oo 

Text-book  of  Mechanical  Drawing  and  Elementary  Machine  Design. 8vo,  3  oo 

Robinson's  Principles  of  Mechanism 8vo,  3  oo 

Schwamb  and  Merrill's  Elements  of  Mechanism 8vo,  3  oo 

Smith's  (R.  S.)  Manual  of  Topographical  Drawing.  (McMillan.) 8vo,  2  50 

Smith  (A.  W.)  and  Marx's  Machine  Design 8vo,  3  oo 

*  Titsworth's  Elements  of  Mechanical  Drawing Oblong  8vo, 


Warren's  Elements  of  Plane  and  Solid  Free-hand  Geometrical  Drawing.  i2mo, 

Drafting  Instruments  and  Operations i2mo, 

Manual  of  Elementary  Projection  Drawing i2mo, 

Manual  of  Elementary  Problems  in  the  Linear  Perspective  of  Form  and 

Shadow i2mo,  oo 

Plane  Problems  in  Elementary  Geometry i2mo,  25 

Primary  Geometry. I2mo,  75 

Elements  of  Descriptive  Geometry,  Shadows,  and  Perspective 8vo,  3  50 

General  Problems  of  Shades  and  Shadows 8vo,  3  oo 

Elements  of  Machine  Construction  and  Drawing 8vo,  7  50 

Problems,  Theorems,  and  Examples  in  Descriptive  Geometry 8vo,  2  50 

Weisbach's    Kinematics    and    Power    of    Transmission.        (Hermann    and 

Klein.) 8vo,  5  oo 

Whelpley's  Practical  Instruction  in  the  Art  of  Letter  Engraving i2mo,  2  oo 

Wilson's  (H.  M.)  Topographic  Surveying 8vo,  3  50 

Wilson's  (V.  T.)  Free-hand  Perspective 8vo.  2  50 

Wilson's  (V.  T.)  Free-hand  Lettering * 8vo,  i  oo 

Woolf's  Elementary  Course  in  Descriptive  Geometry Large  8vo,  3  oo 


ELECTRICITY  AND  PHYSICS. 

*  Abegg's  Theory  of  Electrolytic  Dissociation.     (Von  Ende.) i2mo,  i   25 

Anthony  and  Brackett's  Text-book  of  Physics.     (Magie.) Small  8vo  3  oo 

Anthony's  Lecture-notes  on  the  Theory  of  Electrical  Measurements.  . .  .  i2mo,  i  oo 

Benjamin's  History  of  Electricity 8vo,  3  oo 

Voltaic  Cell 8vo,  3  oo 

Classen's  Quantitative  Chemical  Analysis  by  Electrolysis.     (Boltwood.).Svo,  3  oo 

*  Collins's  Manual  of  Wireless  Telegraphy i2mo,  i  50 

Morocco,  2  oo 

Crehore  and  Squier's  Polarizing  Photo-chronograph 8vo,  3  oo 

*  Danneel's  Electrochemistry.     (Merriam.) I2mo,  i   25 

Dawson's  "Engineering"  and  Electric  Traction  Pocket-book.  i6mo,  morocco,  5  oo 

10 


Dolezalek's    Theory    of    the    Lead    Accumulator    (Storage    Battery).      (Von 

Ende.) izmo,  2  50 

Duhem's  Thermodynamics  and  Chemistry.     (Burgess.) 8vo,  4  oo 

Flather's  Dynamometers,  and  the  Measurement  of  Power i2mo,  3  oo 

Gilbert's  De  Magnete.     (Mottelay.) 8vo,  2  50 

Hanchett's  Alternating  Currents  Explained i2mo,  i  oo 

Bering's  Ready  Reference  Tables  (Conversion  Factors) i6mo  morocco,  2  50 

Holman's  Precision  of  Measurements 8vo,  2  oo 

Telescopic   Mirror-scale  Method,  Adjustments,  and   Tests.  .  .  .Large  8vo,  75 

Kinzbrunner's  Testing  of  Continuous-current  Machines 8vo,  2  oo 

Landauer's  Spectrum  Analysis.     (Tingle.) 8vo,  3  oo 

Le  Chateliers  High-temperature  Measurements.  (Boudouard — Burgess.)  i2mo,  3  oo 

Lob's  Electrochemistry  of  Organic  Compounds.     (Lorenz.) 8vo,  3  oo 

*  Lyons'?  Treatise  on  Electromagnetic  Phenomena.   Vols.  I.  and  II.  8vo,  each,  6  oo 

*  Michie's  Elements  of  Wave  Motion  Relating  to  Sound  and  Light 8vo,  4  oo 

Niaudet's  Elementary  Treatise  on  Electric  Batteries.     (Fishback.) i2mo,  2  50 

*  Parshall  and  Hobart's  Electric  Machine  Design 4to,  half  morocco,  12  50 

Reagan's  Locomotives:    Simple,  Compound,  and  Electric.      New  Edition. 

Large  12 mo,  3  50 

*  Rosenberg's  Electrical  Engineering.     (Haldane  Gee — Kinzbrunner.).  .  .8vo,  2  oo 

Ryan,  Norris,  and  Hoxie's  Electrical  Machinery.     Vol.  1 8vo,  2  50 

Thurston's  Stationary  Steam-engines 8vo,  2  50 

*  Tillman's  Elementary  Lessons  in  Heat 8vo,  i  50 

Tory  and  Pitcher's  Manual  of  Laboratory  Physics Small  8vo,  2  oo 

Ulke's  Modern  Electrolytic  Copper  Refining 8vo,  3  oo 


LAW. 

*  Davis's  Elements  of  Law 8vo,  2  50 

*  Treatise  on  the  Military  Law  of  United  States 8vo,  7  oo 

*  Sheep,  7  50 

*  Dudley's  Military  Law  and  the  Procedure  of  Courts-martial  .  .    .Large  i2mo,  2  50 

Manual  for  Courts-martial i6mo,  morocco,  i  50 

Wait's  Engineering  and  Architectural  Jurisprudence « 8vo,  6  oo 

Sheep,  6  50 

Law  of  Operations  Preliminary  to  Construction  in  Engineering  and  Archi- 
tecture  8vo  5  oo 

Sheep,  5  50 

Law  of  Contracts 8vo,  3  oo 

Winthrop's  Abridgment  of  Military  Law i2mo,  2  50 


MANUFACTURES. 

Bernadou's  Smokeless  Powder — Nitro-cellulose  and  Theory  of  the  Cellulose 

Molecule i2mo,  2  50 

Bolland's  Iron  Founder I2mo,  2  50 

The  Iron  Founder,"  Supplement T2mo,  2  50 

Encyclopedia  of  Founding  and  Dictionary  of  Foundry  Terms  Used  in  the 

Practice  of  Moulding i2mo,  3  oo 

*  Claassen's  Beet-sugar  Manufacture.    (Hall  and  Rolfe.) 8vo,  3  oo 

*  Eckel's  Cements,  Limes,  and  Plasters .8vo,  6  oo 

Eissler's  Modern  High  Explosives 8vo,  4  oo 

Effront's  Enzymes  and  their  Applications.     (Prescott.) 8vo,  3  oo 

Fitzgerald's  Boston  Machinist I2mo,  i  oo 

Ford's  Boiler  Making  for  Boiler  Makers i8mo,  i  oo 

Hopkin's  Oil-chemists'  Handbook 8vo,  3  oo 

Keep's  Cast  Iron 8vo,  2  50 

11 


Leach's  The  Inspection  and  Analysis  of  Food  with  Special  Reference  to  State 

Control Large  8vo,  7  50 

*  McKay  and  Larsen's  Principles  and  Practice  of  Butter-making 8vo,  i  50 

Matthews's  The  Textile  Fibres 8vo,  3  50 

Metcalf's  Steel     A  Manual  for  Steel-users: i2mo,  2  oo 

Metcalfe'f  Cost  of  Manufactures — And  the  Administration  of  Workshops. 8vo,  5  oo 

Meyer's  Modern  Locomotive  Construction 4to,  10  oo 

Morse's  Calculations  used  in  Cane-sugar  Factories i6mo,  morocco,  i  50 

*  Reisig's  Guide  to  Piece-dyeing. 8vo,  25  oo 

Rice's  Concrete-block  Manufacture 8vo,  2  oo 

Sabin's  Industrial  and  Artistic  Technology  of  Paints  and  Varnish 8vo,  3  oo 

Smith's  Press-working  of  Metals 8vo,  3  oo 

Spalding's  Hydraulic  Cement i2mo,  2  oo 

Spencer's  Handbook  for  Chemists  of  Beet-sugar  Houses i6mo  morocco,  3  oo 

Handbook  for  Cane  Sugar  Manufacturers i6mo  morocco,  3  oo 

Taylor  and  Thompson's  Treatise  on  Concrete,  Plain  and  Reinforced 8vo,  5  oo 

Thurston's  Manual  of  Steam-boilers,  their  Designs,  Construction  and  Opera- 
tion  8vo,  5  oo 

*  Walke's  Lectures  on  Explosives 8vo,  4  oo 

Ware's  Beet-sugar  Manufacture  and  Refining Small  8vo,  4  oo 

Weaver's  Military  Explosives 8vo,  3  oo 

West's  American  Foundry  Practice i2mo,  2  50 

Moulder's  Text-book i2mo,  2  50 

Wolff's  Windmill  as  a  Prime  Mover 8vo,  3  oo 

Wood's  Rustless  Coatings:   Corrosion  and  Electrolysis  of  Iron  and  Steel.  .8vo,  4  oo 


MATHEMATICS. 

Baker's  Elliptic  Functions. , 8vo,    i  50 

*  Bass's  Elements  of  Differential  Calculus I2mo,    4  oo 

Briggs's  Elements  of  Plane  Analytic  Geometry 12 mo, 

Compton's  Manual  of  Logarithmic  Computations 12  mo 

Davis's  Introduction  to  the  Logic  of  Algebra 8vo, 

*  Dickson's  College  Algebra Large  1210.0, 

*  Introduction  to  the  Theory  of  Algebraic  Equations Large  i2mo, 

Emch's  Introduction  to  Protective  Geometry  and  its  Applications 8vo 

Halsted's  Elements  of  Geometry 8vo, 

Elementary  Synthetic  Geometry.. 8vo, 


oo 
50 
50 
50 
25 
50 
75 
50 
Rational  Geometry i2mo.  75 

*  Johnson's  (J.  B.)  Thrte-place  Logarithmic  Tables:   Vest-pocket  size. paper,         15 

100  copies  for    5  oo 

*  Mounted  on  heavy  cardboard,  8X 10  inches,        25 

10  copies  for    2  oo 
Johnson's  (W.  W.)  Elementary  Treatise  on  Differential  Calculus .  .  Small  8vo,    3  oo 

Elementary  Treatise  on  the  Integral  Calculus SmalfSvo,     i  50 

Johnson's  (W.  W.)  Curve  Tracing  in  Cartesian  Co-ordinates, i2mo,     i  oo 

Johnson's  (W.  W.)  Treatise  on  Ordinary  and  Partiar Differential  Equations. 

Small  8vo,    3  50 
Johnson's  (W,  W.)  Theory  of  Errors  and  the  Method  of  Least  Squares.  i2mo,     i  50 

*  Johnson's  (W   W.)  Theoretical  Mechanics i2mo,    3  oo 

Laplace's  Philosophical  Essay  on  Probabilities.    (Truscott  and  Emory.) .  i2mo,    2  oo 

*  Ludlow  and  Bass.     Elements  of  Trigonometry  and  Logarithmic  and  Other 

Tables 8vo,    3  oo 

Trigonometry  and  Tables  published  separately Each,    2  oc 

*  Ludlow's  Logarithmic  and  Trigonometric  Tables. 8vo      i  oo 

Manning's  Irrational  Numbers  and  their  Representation  by  Sequences  and  Series 

I2mo,      i   25 

12 


Mathematical  Monographs.     Edited  by  Mansfield  Merriman  and  Robert 

S.  Woodward. Octavo,  each     i  oo 

No.  i,  History  of  Modern  Mathematics,  by  David  Eugene  Smith. 
No.  2.  Synthetic  Projective  Geometry,  by  George  Bruce  Halste.d. 
No.  3.  Determinants,  by  Laenas  Gifford  Weld.  No.  4.  Hyper- 
bolic Functions,  by  James  McMahon.  No.  g.  Harmonic  Func- 
tions, by  William  E.  Byerly.  No.  6.  Grassmann's  Space  Analysis, 
by  Edward  W.  Hyde.  No.  7.  Probability  and  Theory  of  Errors, 
by  Robert  S.  Woodward.  No.  8.  Vector  Analysis  and  Quaternions, 
by  Alexander  Macfarlane.  No.  9.  Differential  Equations,  by 
William  Woolsey  Johnson.  No.  10.  The  Solution  of  Equations, 
by  Mansfield  Merriman.  No.  n.  Functions  of  a  Complex  Variable, 
by  Thomas  S.  Fiskc. 

Maurer's  Technical  Mechanics 8vo,    4  oo 

Merriman's  Method  of  Least  Squares 8vo,    2  oo 

Rice  and  Johnson's  Elementary  Treatise  on  the  Differential  Calculus. .  Sm.  8vo,    3  oo 

Differential  and  Integral  Calculus.     2  vols.  in  one Small  8vo,    2  50 

*  Veblen  and  Lennes's  Introduction  to  the  Real  Infinitesimal  Analysis  of  One 

Variable 8vo,    2  oo 

Wood's  Elements  of  Co-ordinate  Geometry 8vo,    2  oo 

Trigonometry:   Analytical,  Plane,  and  Spherical 12 mo,     i  oo 


MECHANICAL  ENGINEERING. 

MATERIALS  OF  ENGINEERING,  STEAM-ENGINES  AND  BOILERS. 

Bacon's  Forge  Practice i2mo,  i  50 

Baldwin's  Steam  Heating  for  Buildings i2mo,  2  50 

Barr's  Kinematics  of  Machinery 8vo,  2  50 

*  Bartlett's  Mechanical  Drawing 8vo,  3  oo 

*  "                                     "        Abridged  Ed 8vo,  150 

Benjamin's  Wrinkles  and  Recipes i2mo,  2  oo 

Carpenter's  Experimental  Engineering 8vo,  6  oo 

Heating  and  Ventilating  Buildings 8vo,  4  oo 

Clerk's  Gas  and  Oil  Engine Small  8vo,  4  oo 

Coolidge's  Manual  of  Drawing 8vo,  paper,  i  oo 

Coolidge  and  Freeman's  Elements  of  General  Drafting  for  Mechanical  En- 
gineers   Oblong  4to,  2  50 

Cromwell's  Treatise  on  Toothed  Gearing i2mo,  i  50 

Treatise  on  Belts  and  Pulleys i2tno,  i  50 

Durley's  kinematics  of  Machines 8vo,  4  oo 

Flather's  Dynamometers  and  the  Measurement  of  Power I2mo,  3  oo 

Rope  Driving i2mo,  2  oo 

Gill's  Gas  and  Fuel  Analysis  for  Engineers i2mo,  i  25 

Hall's  Car  Lubrication .' 12 mo,  i  oo 

Bering's  Ready  Reference  Tables  (Conversion  Factors) i6mo,  morocco,  2  50 

Button's  The  Gas  Engine 8vo,  5  oo 

Jamison's  Mechanical  Drawing 8vo,  2  50 

Jones's  Machine  Design: 

Part  I.     Kinematics  of  Machinery 8vo,  i  50 

Part  II.     Form,  Strength,  and  Proportions  of  Parts 8vo,  3  oo 

Kent's  Mechanical  Engineers'  Pocket-book i6mo,  morocco,  5  oo 

Kerr's  Power  and  Power  Transmission 8vo,  2  oo 

Leonard's  Machine  Shop,  Tools,  and  Methods 8vo,  4  oo 

*  Lorenz's  Modern  Refrigerating  Machinery.    (Pope,  Haven,  and  Dean.)  .  .8vo,  4  oo 
MacCord's  Kinematics;   or,  Practical  Mechanism 8vo,  5  oo 

Mechanical  Drawing 4to,  4  oo 

Velocity  Diagrams 8vo,  i  50 

13 


MacFar land's  Standard  Reduction  Factors  for  Gases 8vo,  i  50 

llahan's  Industrial  Drawing.     (Thompson.) 8vo  3  50 

Pooie'S  Calorific  Power  of  Fuels 8vo,  3  oo 

Reid's  Course  in  Mechanical  Drawing 8vo,  2  oo 

Text-book  of  Mechanical  Drawing  and  Elementary  Machine  Design.  8vo.  3  oo 

Richard's  Compressed  Air i2mo,  i  50 

Robinson's  Principles  of  Mechanism 8vo,  3  oo 

Schwanib  and  Merrill's  Elements  of  Mechanism 8vo,  3  oo 

Smith's  (O.)  Press-working  of  Metals 8vo  3  oo 

Smith  (A.  W.)  and  Marx's  Machine  Design 8vo,  3  oo 

Thurston's   Treatise   on   Friction  and   Lost   Work   in   Machinery   and   Mill 

Work 8vo,  3  oo 

Animal  as  a  Machine  and  Prime  Motor,  and  the  Laws  of  Energetics .  i2mo>:  i  oo 

Tillson's  Complete  Automobile  Instructor i6mo,  i  50 

Morocco,  2  oo 

Warren's  Elements  of  Machine  Construction  and  Drawing 8vo,  7  50 

Weisbach's    Kinematics    and    the    Power    of    Transmission.     (Herrmann — 

Klein.) 8vo,  5  oo 

Machinery  of  Transmission  and  Governors.     (Herrmann — Klein.).  .8vo,  5  oo 

Wolff' s  Windmill  as  a  Prime  Mover 8vo,  3  oo 

Wood's  Turbines 8vo,  2  50 


MATERIALS  OF  ENGINEERING. 

*  Bovey's  Strength  of  Materials  and  Theory  of  Structures 8vo,  7  50 

Burr's  Elasticity  and  Resistance  of  the  Materials  of  Engineering.    6th  Edition. 

Reset 8vo,  7  50 

Church's  Mechanics  of  Engineering 8vo,  6  oo 

*  Greene's  Structural  Mechanics <?vo,  2  50 

Johnson's  Materials  of  Construction 8vo,  6  oo 

Keep's  Cast  Iron 8vo,  2  50 

Lanza's  Applied  Mechanics 8vo,  7  50 

Martens's  Handbook  on  Testing  Materials.     (Henning.) 8vo,  7  50 

Maurer's  Technical  Mechanics 8vo,  4  oo 

Merriman's  Mechanics  of  Materials 8vo,  5  oo 

*  Strength  of  Materials i2mo,  i  oo 

Metcalf's  Steel.     A  Manual  for  Steel-users i2mo,  2  oo 

Sabin's  Industrial  and  Artistic  Technology  of  Paints  and  Varnish 8vo,  3  oo 

Smith's  Materials  of  Machines i2mo,  i  oo 

Thurston's  Materials  of  Engineering 3  vols.,  8vo,  8  oo 

Part  II.     Iron  and  Steel 8vo,  3  50 

Part  III.     A  Treatise  on  Brasses,  Bronzes,  and  Other  Alloys  and  their 

Constituents 8vo,  2  50 

Wood's  (De  V.)  Treatise  on  the  Resistance  of  Materials  and  an  Appendix  on 

the  Preservation  of  Timber 8vo,  a  oo 

Elements  of  Analytical  Mechanics 8vo,  3  oo 

Wood's  (M.  P.)  Rustless  Coatings:    Corrosion  and  Electrolysis  of  Iron  and 

Steel 8vo,  4  oo 


STEAM-ENGINES  AND  BOILERS. 

Berry's  Temperature-entropy  Diagram I2mo,  i  25 

Carnot's  Reflections  on  the  Motive  Power  of  Heat.     (Thurston.) i2mo,  i  50 

Dawson's  "Engineering"  and  Electric  Traction  Pocket-book.  . .  .i6mo,  mor.,  5  oo 

Ford's  Boiler  Making  for  Boiler  Makers i8mo,  i  oo 

Goss's  Locomotive  Sparks 8vo,  2  oo 

Locomotive  Performance 8vo,  5  oo 

Hemenway's  Indicator  Practice  and  Steam-engine  Economy i2mo,  2  oo 

14 


Button's  Mechanical  Engineering  of  Power  Plants 8vo,  5  oo 

Heat  and  Heat-engines 8vo.  5  oo 

Kent's  Steam  boiler  Economy 8vo,  4  oo 

Kneass's  Practice  and  Theory  of  the  Injector 8vo,  i  50 

MacCord's  Slide-valves 8vo,  2  oo 

Meyer's  Modern  Locomotive  Construction 4to,  10  oo 

Peabody's  Manual  of  the  Steam-engine  Indicator i2mo.  i  50 

Tables  of  the  Properties  of  Saturated  Steam  and  Other  Vapors    8vo,  i  oo 

Thermodynamics  of  the  Steam-engine  and  Other  Heat-engines 8vo,  5  oo 

Valve-gears  for  Steam-engines 8vo,  2  50 

Peabody  and  Miller's  Steam-boilers 8vo,  4  oo 

Fray's  Twenty  Years  with  the  Indicator Large  8vo,  2  50 

Pupin's  Thermodynamics  of  Reversible  Cycles  in  Gases  and  Saturated  Vapors. 

(Osterberg.) i2mo,  i  25 

Reagan's  Locomotives:    Simple,  Compound,  and  Electric.     New  Edition. 

Large  12 mo,  3  50 

Rontgen's  Principles  of  Thermodynamics.     (Du  Bois.) 8vo,  5  o« 

Sinclair's  Locomotive  Engine  Running  and  Management I2mo,  2  oo 

Smart's  Handbook  of  Engineering  Laboratory  Practice. 12010,  2  50 

Snow's  Steam-boiler  Practice 8vo,  3  oo 

Spangler's  Valve-gears 8vo,  2  50 

Notes  on  Thermodynamics izmo,  i  oo 

Spangler,  Greene,  and  Marshall's  Elements  of  Steam-engineering 8vo,  3  oo 

Thomas's  Steam-turbines 8vo,  3  50 

Thurston's  Handy  Tables 8vo,  i  50 

Manual  of  the  Steam-engine 2  vols.,  8vo,  10  oo 

Part  I.     History,  Structure,  and  Theory 8vo,  6  oo 

Part  II.     Design,  Construction,  and  Operation 8vo,  6  oo 

Handbook  of  Engine  and  Boiler  Trials,  and  the  Use  of  the  Indicator  and 

the  Prony  Brake 8vo,  5  oo 

Stationary  Steam-engines 8vo,  2  50 

Steam-boiler  Explosions  in  Theory  and  in  Practice i2mo,  i  50 

Manual  of  Steam-boilers,  their  Designs,  Construction,  and  Operation .  8vo,  5  oo 

Wehrenfenn ing's  Analysis  and  Softening  of  Boiler  Feed-water  (Patterson)  8vo,  4  oo 

Weisbach's  Heat,  Steam,  and  Steam-engines.     (Du  Bois.) 8vo,  5  oo 

Whitham's  Steam-engine  Design 8vo,  5  oo 

Wood's  Thermodynamics,  Heat  Motors,  and  Refrigerating  Machines. .  .8vo,  4  oo 


MECHANICS  AND  MACHINERY. 

Barr's  Kinematics  of  Machinery 8vo,    2  50 

*  Bovey's  Strength  of  Materials  and  Theory  of  Structures   8vo,     7  50 

Chase's  The  Art  of  Pattern-making I2mo,    2  50 

Church's  Mechanics  of  Engineering 8vo,    6  oo 

Notes  and  Examples  in  Mechanics 8vo, 

Compton's  First  Lessons  in  Metal-working izmo, 

Compton  and  De  Groodt's  The  Speed  Lathe i2mo, 

Cromwell's  Treatise  on  Toothed  Gearing. i2mo, 


Treatise  on  Belts  and  Pulleys i2mo, 

Dana's  Text-book  of  Elementary  Mechanics  for  Colleges  and  Schools.  .i2mo, 


oo 
So 
50 
50 
50 
50 

Dingey's  Machinery  Pattern  Making i2mo,    2  oo 

Dredge's   Record  of  the   Transportation  Exhibits  Building  of  the   World's 

Columbian  Exposition  of  1893 4to  half  morocco,    5  oo 

Du  Bois's  Elementary  Principles  of  Mechanics : 

Vol.      I.     Kinematics 8vo,    3  50 

Vol.    II.     Statics 8vo,    4  oo 

Mechanics  of  Engineering.     Vol.    I Small  4to,    7  50 

Vol.  II Small  4to,  10  oo 

Durley's  Kinematics  of  Machines. 8vo,    4  oo 

15 


Fitzgerald's  Boston  Machinist i6mo,  i  oo 

Flather's  Dynamometers,  and  the  Measurement  of  Power i2mo,  3  oo 

Rope  Driving i2mo,  2  oo 

Goss's  Locomotive  Sparks 8vo,  2  oo 

Locomotive  Performance 8vo,  5  oo 

*  Greene's  Structural  Mechanics 8vo,  2  50 

Hall's  Car  Lubrication i2mo,  i  oo 

Holly's  Art  of  Saw  Filing i8mo,  75 

James's  Kinematics  of  a  Point  and  the  Rational  Mechanics  of  a  Particle. 

Small  8vo,  2  oo 

*  Johnson's  (W.  W.)  Theoretical  Mechanics i2mo,  3  oo 

Johnson's  (L.  J.)  Statics  by  Graphic  and  Algebraic  Methods 8vo,  2  oo 

Jones's  Machine  Design: 

Part    I.     Kinematics  of  Machinery 8vo,  i  50 

Part  II.     Form,  Strength,  and  Proportions  of  Parts 8vo,  3  oo 

Kerr's  Power  and  Power  Transmission 8vo,  2  oo 

Lanza's  Applied  Mechanics 8vo,  7  50 

Leonard's  Machine  Shop,  Tools,  and  Methods 8vo,  4  oo 

*  Lorenz's  Modern  Refrigerating  Machinery.     (Pope,  Haven,  and  Dean.). 8vo,  4  oo 
MacCord's  Kinematics;  or,  Practical  Mechanism 8vo,  5  oo 

Velocity  Diagrams 8vo,  i  50 

*  Martin's  Text  Book  on  Mechanics,  Vol.  I,  Statics i2mo,  i  25 

Maurer's  Technical  Mechanics 8vo,  4  oo 

Merriman's  Mechanics  of  Materials 8vo,  5  oo 

*  Elements  of  Mechanics i2mo,  i  oo 

*  Michie's  Elements  of  Analytical  Mechanics 8vo,  4  oo 

*  Parshalland  Hobart's  Electric  Machine  Design 4to,  half  morocco,  12  50 

Reagan's  Locomotives :  Simple,  Compound,  and  Electric.     New  Edition. 

Large  12 mo,  -3  oo 

Reid's  Course  in  Mechanical  Drawing 8vo,  2  oo 

Text-book  of  Mechanical  Drawing  and  Elementary  Machine  Design. 8vo,  3  oo 

Richards's  Compressed  Air i2mo,  i  50 

Robinson's  Principles  of  Mechanism 8vo,  3  oo 

Ryan,  Norris,  and  Hoxie's  Electrical  Machinery.     Vol.  1 8vo,  2  50 

Sanborn's  Mechanics:  Problems. Large  i2mo,  i  50 

Schwamb  and  Merrill's  Elements  of  Mechanism 8vo,  3  oo 

Sinclair's  Locomotive-engine  Running  and  Management i2mo,  2  oo 

Smith's  (O.)  Press-working  of  Metals 8vo,  3  oo 

Smith's  (A.  W.)  Materials  of  Machines I2mo,  i  oo 

Smith  (A.  W.)  and  Marx's  Machine  Design 8vo,  3  oo 

Spangler,  Greene,  and  Marshall's  Elements  of  Steam-engineering 8vo,  3  oo 

Thurston's  Treatise  on  Friction  and  Lost  Work  in    Machinery  and    Mill 

Work 8vo,  3  oo 

Animal  as  a  Machine  and  Prime  Motor,  and  the  Laws  of  Energetics.  i2mo,  i  oo 

Tillson's  Complete  Automobile  Instructor i6mo,  i  50 

Morocco,  2  oo 

Warren's  Elements  of  Machine  Construction  and  Drawing 8vo,  7  So 

Weisbach's  Kinematics  and  Power  of  Transmission.   (Herrmann — Klein. ) .  8vo ,  5  oo 

Machinery  of  Transmission  and  Governors.      (Herrmann — Klein. ).8vo,  5  oo 

Wood's  Elements  of  Analytical  Mechanics 8vo,  3  oo 

Principles  of  Elementary  Mechanics I2mo,  i  25 

Turbines 8vo,  2  50 

The  World's  Columbian  Exposition  of  1893 4to,  i  oo 

MEDICAL. 

De  Fursac's  Manual  of  Psychiatry.     (Rosanoff  and  Collins.) Large  i2mo,  2  50 

Ehrlich's  Collected  Studies  on  Immunity.     (Bolduan.) 8vo,    6  oo 

Hammarsten's  Text-book  on  Physiological  Chemistry.     (Mandel.) 8vo,   4  oo 

16 


Lassar-Cohn's  Practical  Urinary  Analysis.     (Lorenz.) i2mo,  i  oo 

*  Pauli's  Physical  Chemistry  in  the  Service  of  Medicine.     (Fischer.) .  .  .    i2mo,  i  25 

*  Pozzi-Escot's  The  Toxins  and  Venoms  and  their  Antibodies.     (Cohn.).  i2mo,  i  oo 

Rostoski's  Serum  Diagnosis.     (Bolduan.) i2mo,  i  oo 

Salkowski's  Physiological  and  Pathological  Chemistry.     (Orndorff.) 8vo,  2  50 

*  Satterlee's  Outlines  of  Human  Embryology i2mo,  i  25 

Steel's  Treatise  on  the  Diseases  of  the  Dog 8vo,  3  50 

Von  Behring's  Suppressfon  of  Tuberculosis.     (Bolduan.) I2mo,  i  oo 

Wassermann's  Immune  Sera-  Haemolysis,  Cytotoxins,  and  Precipitins.     (Bol- 
duan.)   i2mo, cloth,  i  oo 

Woodhull's  Notes  on  Military  Hygiene i6mo,  i  50 

*  Personal  Hygiene I2mo,  i  oo 

Wulling's  An  Elementary  Course  in  Inorganic  Pharmaceutical  and  Medical' 

Chemfetry i2mo,  2  oo 


METALLURGY. 

Egleston's  Metallurgy  of  Silver,  Gold,  and  Mercury: 

Vol.    I.     Silver 8vo,  7  50 

Vol.  II.     Gold  and  Mercury 8vo,  7  50 

Goesel's  Minerals  and  Metals:     A  Reference  Book , . . . .  i6mo,  mor.  3  oo 

*  Iles's  Lead-smelting i2mo,  2  50 

Keep's  Cast  Iron 8vo,  2  50 

Kunhardt's  Practice  of  Ore  Dressing  in  Europe 8vo,  i  50 

Le  Chatelier's  High-temperature  Measurements.  (Boudouard — Burgess. )i2mo,  3  oo 

Metcalf's  Steel.     A  Manual  for  Steel-users 12 mo,  2  oo 

Miller's  Cyanide  Process i2mo,  i  oo 

Minet's  Production  of  Aluminum  and  its  Industrial  Use.     (Waldo.). ..  .i2mo,  2  50 

Robine  and  Lenglen's  Cyanide  Industry.     (Le  Clerc.) 8vo,  4  oo 

Smith's  Materials  of  Machines i2mo,  i  oo 

Thurston's  Materials  of  Engineering.     In  Three  Parts 8vo,  8  oo 

Part    II.     Iron  and  Steel 8vo,  3  50 

Part  III.     A  Treatise  on  Brasses,  Bronzes,  and  Other  Alloys  and  their 

Constituents 8vo,  2  50 

Ulke's  Modern  Electrolytic  Copper  Refining 8vo,  3  oo 


MINERALOGY. 

Barringer's  Description  of  Minerals  of  Commercial  Value.    Oblong,  morocco,  2  50 

Boyd's  Resources  of  Southwest  Virginia 8vo,  3  oo 

Map  of  Southwest  Virignia Pocket-book  form.  2  oo 

Brush's  Manual  of  Determinative  Mineralogy.     (Penfield.) 8vo,  4  oo 

Chester's  Catalogue  of  Minerals 8vo,  paper,  i  oo 

Cloth,  i  25 

Dictionary  of  the  Names  of  Minerals 8vo,  3  50 

Dana's  System  of  Mineralogy Large  8vo,  half  leather,  12  50 

First  Appendix  to  Dana's  New  "  System  of  Mineralogy." Large  8vo,  i  oo 

Text-book  of  Mineralogy 8vo,  4  oo 

Minerals  and  How  to  Study  Them i2mo.  i  50 

Catalogue  of  American  Localities  of  Minerals Large  8vo,  i  oo 

Manual  of  Mineralogy  and  Petrography i2mo  2  oo 

Douglas's  Untechnical  Addresses  on  Technical  Subjects i2mo,  i  oo 

Eakle's  Mineral  Tables 8vo,  i  25 

Egleston's  Catalogue  of  Minerals  and  Synonyms 8vo,  2  50 

Goesel's  Minerals  and  Metals :     A  Reference  Book i6mo,  mor.  3  oo 

Groth's  Introduction  to  Chemical  Crystallography  (Marshall) I2mo,  i  25 

17 


Iddings's  Rock  Minerals • 8vo,  5  oo 

Merrill's  Non-metallic  Minerals:   Their  Occurrence  and  Uses 8vo,  4  oo 

*  Penfield's  Notes  on  Determinative  Mineralogy  and  Record  of  Mineral  Tests. 

8vo,  paper,  50 

*  Richards's  Synopsis  of  Mineral  Characters i2mo,  morocco,  i  25 

*  Ries's  Clays:  Their  Occurrence,  Properties,  and  Uses 8vo,  5  oo 

Rosenbusch's   Microscopical   Physiography   of   the   Rock-making  Minerals. 

(Iddings.) 8vo,  5  oo 

*  Tillman's  Text-book  of  Important  Minerals  and  Rocks 8vo,  2  oo 


MINING. 

Boyd's  Resources  of  Southwest  Virginia 8vo,  3  oo 

Map  of  Southwest  Virginia Pocket-book  form  2  oo 

Douglas's  Untechnical  Addresses  on  Technical  Subjects i2mo,  I  oo 

Eissler's  Modern  High  Explosives.      ...    8~->  4  ->o 

Goesel's  Minerals  and  Metals :     A  Reference  Book i6mo,  mor.  3  oo 

Goodyear's  Coal-mines  of  the  Western  Coast  of  the  United  States i2mo,  2  50 

Ihlseng's  Manual  of  Mining 8vo,  5  oo 

*  Iles's  Lead-smelting I2mo,  2  50 

Kunhardt's  Practice  of  Ore  Dressing  in  Europe 8vo,  i  50 

Miller's  Cyanide  Process i2mo,  i  oo 

O'Driscoll's  Notes  on  the  Treatment  of  Gold  Ores 8vo,  2  oo 

Robine  and  Lenglen's  Cyanide  Industry.     (Le  Clerc.) 8vo,  4  oo 

*  Walke's  Lectures  on  Explosives 8vo,  4  oo 

Weaver's  Military  Explosives 8vo,  3  oo 

Wilson's  Cyanide  Processes i2mo,  i  50 

Chlorination  Process i2mo,  i  50 

Hydraulic  and  Placer  Mining 12010,  2  oo 

Treatise  on  Practical  and  Theoretical  Mine  Ventilation I2mo,  i  25 

I 

SANITARY  SCIENCE. 

Bashore's  Sanitation  of  a  Country  House i2mo,  oo 

*  Outlines  of  Practical  Sanitation i2mo,  25 

Folwell's  Sewerage.     (Designing,  Construction,  and  Maintenance.) 8vo,  oo 

Water-supply  Engineering 8vo,  oo 

Fowler's  Sewage  Works  Analyses i2mo,  oo 

Fuertes's  Water  and  Public  Health i2mo,  50 

Water-filtration  Works I2mo,  50 

Gerhard's  Guide  to  Sanitary  House-inspection i6mo,  oo 

Hazen's  Filtration  of  Public  Water-supplies 8vo,  3  oo 

Leach's  The  Inspection  and  Analysis  of  Food  with  Special  Reference  to  State 

Control 8vo,  7  50 

Mason's  Water-supply.  (Considered  principally  from  a  Sanitary  Standpoint)  8vo,  4  oo 


Examination  of  Water.     (Chemical  and  Bacteriological.) I2mo, 

*  Merriman's  Elements  of  Sanitary  Engineering 8vo, 

Ogden's  Sewer  Design i2mo, 

Prescott  and  Winslow's  Elements  of  Water  Bacteriology,  with  Special  Refer- 
ence to  Sanitary  Water  Analysis i2mo, 

*  Price's  Handbook  on  Sanitation i2mo, 

Richards's  Cost  of  Food.     A  Study  in  Dietaries i2mo, 

Cost  of  Living  as  Modified  by  Sanitary  Science i2mo, 

Cost  of  Shelter i2mo, 

18 


Richards  and  Woodman's  Air.   Water,  and  Food  from  a  Sanitary  Stand- 
point  8vo,  2  oo 

*  Richards  and  Williams's  The  Dietary  Computer 8vo,  i  50 

Rideal's  Sewage  and  Bacterial  Purification  of  Sewage 8vo,  4  oo 

Turneaure  and  Russell's  Public  Water-supplies 8vo,  5  oo 

Von  Behring's  Suppression  of  Tuberculosis.     (Bolduan.) izmo,  i  oo 

Whipple's  Microscopy  of  Drinking-water 8vo,  3  50 

Winton's  Microscopy  of  Vegetable  Foods. 8vo,  7  50 

Woodhull's  Notes  on  Military  Hygiene i6mo,  i  50 

*  Personal  Hygiene i2mo,  i  oo 


MISCELLANEOUS. 

Emmons's  Geological  Guide-book  of  the  Rocky  Mountain  Excursion  of  the 

International  Congress  of  Geologists L'arge  8vo,  i  50 

Ferrel's  Popular  Treatise  en  the  Winds 8vo,  4  oo 

Gannett's  Statistical  Abstract  of  the  World 24010,  75 

Haines's  American  Railway  Management I2mo,  2  50 

Ricketts's  History  of  Rensselaer  Polytechnic  Institute,  1824-1894.  .Small  8vo,  3  oo 

Rotherham's  Emphasized  New  Testament Large  8vo ,  2  oo 

The  World's  Columbian  Exposition  of  1893 4to,  i  oo 

Winslow's  Elements  of  Applied  Microscopy 12 mo,  i  50 


HEBREW  AND  CHALDEE  TEXT-BOOKS. 

Green's  Elementary  Hebrew  Grammar i2mo,  i  25 

Hebrew  Chrestomathy 8vo,  2  oo 

Gesenius's  Hebrew  and  Chaldee  Lexicon  to  the  Old  Testament  Scriptures. 

(Tregelles.) Small  4to,  half  morocco,  5  oo 

Letteris's  Hebrew  Bible 8vo,  2  25 

19 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


LD21A-45m-9,'67 
(H5067slO)476B 


General  Library 

University  of  California 

Berkeley 


